As of January 1, 2018 California implemented several laws that affect employers who hire and operate in the Golden State.
Assembly Bill 1008: Ban The Box
This Bill updates an existing law, the California Fair Employment and Housing Act (FEHA). It declares that employers with five or more employees may not:
Include questions about arrests or convictions on job applications.
Inquire about an applicant's arrests or convictions in any way until after a conditional job offer has been extended.
Consider, distribute or disseminate information about:
Arrests that did not lead to convictions (except when allowed by the Labor Code).
Referral to or participation in a pre or post-trial diversion program.
Convictions that were expunged, dismissed, statutorily eradicated or sealed.
Employers are permitted to run criminal background checks after making a conditional job offer.
The Adverse Action Process
If an employer is considering an adverse action (such as denial of employment) after finding a criminal conviction during the screening process, they must first perform an individualized assessment. This involves considering:
The nature and gravity of each offense.
How much time has passed since the applicant committed the offense or completed a sentence.
Whether or not the conviction is relevant to the position and job duties.
After performing this assessment, employers must take the following steps if they are still considering an adverse action:
Inform the applicant that they are considering the adverse action.
Send the person a copy of their background check and a summary of their rights under the FCRA.
Specify the conviction(s) that might lead to rescinding the offer.
Supply a copy of the conviction history report (if one exists).
Notify the person that they have five business days to send written notification that they wish to dispute the results of their report. The dispute can contain evidence that challenges the conviction, rehabilitation / mitigating circumstances or both.
If an applicant provides written notification of their intent to dispute within five business days, the employer must grant them five additional days. Once a dispute is submitted, the employer must consider it before making a final decision.
Taking An Adverse Action
If an employer decides to deny employment, solely or in part because of a conviction, they must inform the applicant in writing and provide:
Written notification about the decision to deny employment.
A second copy of the applicant's rights under the FCRA.
Notification, in writing, that they have the right to file a complaint.
A written document that explains the employer's policies for allowing an applicant to challenge a hiring decision or request reconsideration.
For more information about new laws that affect hiring and background screening, visit our 2018 State Laws page and follow our Blog. If you have questions about these laws or other relevant topics, please contact us.
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