Effective October 11, 2019

Update To The California Consumer Privacy Act of 2018

An existing law known as The California Consumer Privacy Act of 2018 states that consumers may ask a business to disclose "specific pieces of personal information it has collected and to have information held by that business deleted, as specified."

California Assembly Bill 25 (AB25) updates that bill. It:

  • Requires businesses to disclose and deliver the required information to a consumer free of charge within 45 days of receiving a verifiable consumer request.
  • Prohibits businesses from requiring a consumer to create an account with the business in order to make a verifiable consumer request.

AB25 authorizes businesses to require consumers to submit a “verifiable consumer request through an account that the consumer maintains with the business if the consumer maintains an account with that business.”

The bill also authorizes consumers to bring civil actions against businesses that violate this law.

California Clarifies The Definition Of An Employee

California Assembly Bill 5 creates a new definition for employee. It states that any person who provides labor or services is an employee and not an independent contractor unless the following conditions apply:
  • The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.
  • The person performs work that is outside the usual course of the hiring entity’s business.
  • The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

Effective January 1, 2018

Ban The Box

California's Ban the Box policy is Assembly Bill No. 1008 (AB 1008). This law:
  • Prohibits California employers from including questions on job applications that ask if the person has a conviction.
  • Stipulates that CA employers may only inquire about an applicant's criminal history or run a criminal background check after extending a conditional job offer.
  • Bans employers from considering arrests that did not result in a conviction.
  • Bans employers from considering convictions that were expunged, dismissed, statutorily eradicated or sealed.
Employers will be permitted to check an applicant's criminal history after making a conditional job offer. If the person has a conviction, then employers must perform an individualized assessment for each applicant. This involves considering the seriousness of an offense and how much time has gone by since the conviction occurred and weighing the type of conviction against the type of job an applicant is seeking.

If the employer wishes to consider an adverse action, they must follow an updated pre-adverse process:
  • Inform the applicant that they have not yet but might pursue the adverse action.
  • Provide the person with a copy of their background check and their rights under the FCRA.
  • Specify the conviction(s) that might cause the person to be ineligible for employment.
  • Supply a copy of the conviction history report (if one exists).
  • Let the person know they have the right to dispute the results of their background report and that they have five business days to provide written notification of their intention to dispute.
If an applicant notifies a potential employer that they wish to dispute their background check, then the employer must give the person an additional five business days to follow up.

When the pre-adverse process is complete, an employer may choose to deny employment based on a criminal conviction. The employer must first:
  • Notify the applicant in writing about their decision.
  • Provide a second copy of the applicant's rights under the FCRA.
  • Inform the applicant, in writing, that they have the right to file a complaint.
  • Offer a written document that explains the employer's policies for allowing an applicant to challenge a hiring decision or request reconsideration.
  • Follow any other existing adverse action procedures.
AB 1008 will not apply to:
  • Employers with fewer than five employees.
  • State or local agencies that are required to run criminal background checks on all applicants.

Employers Must Follow New Laws Regarding Asking About Salary History

Assembly Bill 2282 (AB 2282) states:
  • Employers shall not rely on the salary history information of an applicant as a factor in determining whether to offer employment or what salary to offer an applicant.
  • Employers may not ask about or seek salary history information, including compensation and benefits, about an applicant for employment.
  • Employers, upon reasonable request, shall provide the pay scale for a position to an applicant applying for employment.

Juvenile Records Can Be Sealed For Certain Offenses

Senate Bill 312 updates existing laws that cover juvenile crime records. It was filed with the Secretary of State on October 11, 2017. This bill allows an individual to file a request to have a violent criminal record sealed if the offense occurred after the person was at least 14-years old (but still a minor) and was reduced to a misdemeanor. Employers should be aware that sealed records may not be used when making employment or other business related decisions.

Effective October 11, 2017

Employers May Not Consider Salary History When Determining What Salary To Offer

On October 11, 2017, Governor Jerry Brown signed Assembly Bill 168 (AB 168), which is designed to prohibit employers from using an applicant's previous salary history to determine what salary to offer them now. The bill states:
  • Employers may not use or rely on an applicant's salary history as a factor in determining a salary when offering employment.
  • Employers shall not request an applicant's salary history orally or in writing, personally or through any type of agent.
  • Upon "reasonable request" employers shall inform an applicant about the pay scale for the position to which they are applying.
  • If an applicant voluntarily discloses their salary history, then the employer may use that information when determining a salary to offer that person.
AB 168 applies to all employers, including state, local government and the Legislature.

July 1, 2018

San Francisco Parity In Pay Ordinance

Prior to the singing of AB 168, the City of San Francisco passed the Parity In Pay Ordinance to help reduce a gender-based wage gap. The ordinance, which is intended to be implemented on July 1, 2018 declares:
  • Employers may not ask applicants about their salary history.
  • Employers may not use an applicant's salary history, if it is known, as a basis to make any determination on salary or other form of compensation for that applicant.
  • If an employer is asked about the salary of a former employee, they may not divulge that information without the individual's written authorization.
  • Employers may not deny employment or initiate any other adverse action against an applicant who does not divulge their salary history.
  • Job applicants have the right to voluntarily disclose their salary history for the purpose of negotiating an updated salary after they have received an initial offer.

Pre-Adverse Action Letters Must List The Item(s) That Might Warrant An Adverse Action

Before an employer can decide not to hire an applicant based on the results of a background check, they must provide a Pre-Adverse Action Letter and give the applicant time to review their report. California law now stipulates that these letters must include the specific reason(s) – such as a criminal conviction – why an adverse action is being considered. This applies to background checks that are run internally or externally.

Non-Felony Marijuana Possession Convictions That Are More Than 2 Years Old Cannot Be Considered

Unless the conviction was a felony, employers cannot consider convictions for marijuana possession that occurred more than two years prior.

Employers Must Consider Convictions Individually

As of July 1, California employers must eliminate policies that automatically disqualify applicants who have a criminal record. Instead, employers must review convictions on a case-by-case basis. This includes considering factors such as how much time has passed since the conviction occurred, asking for details about the offense(s) and following guidelines created by the Equal Employment Opportunity Commission. Employers should assess each candidate individually and be able to show that their screening policy is comprehensive enough to determine whether or not an individual could be considered an "unacceptable risk" based on the type of job to which they are applying. Best practice is for employers to have a comprehensive written screening policy that shows they are following applicable laws and maintaining consistent screening practices.

California job seekers who are part of any FEHA-protected class (based on race, gender, origin, age, etc) now have the right to claim an employer could have implemented a "less discriminatory policy" that still suits their business needs. The onus to provide proof is on the applicant, but that could be accomplished by providing state or national statistics that show there is a disparity between the number of convictions for people in protected versus non-protected classes. Applicants also have the right to file a complaint with the Department of Fair Employment and Housing (DFEH). The DFEH can then conduct their own investigation or authorize the individual to file a private lawsuit against the employer (only California employees can file private suits, but employees outside of the state can present claims to the EEOC). Depending on the outcome, an employer could be told to: pay both back and future pay; hire, reinstate or promote an individual; change internal polices; pay punitive damages, attorney fees and other expenses; provide training and/or reasonable accommodations to the individual.

The Society For Human Resource Management offers best practice tips for California employers:
  • Document your screening policies to show they are relevant to the positions for which you are hiring, consistent with business needs and that they allow for individual assessments of applicants and current employees.
  • Do not use "blanket policies" that automatically exclude individuals for having a criminal conviction.
  • Thoroughly train all personnel involved in the hiring process on how to assess criminal convictions.
These laws apply to private and public California employers with at least five employees.

"Seven-Year" Law For Background Checks

CA Civil Code 1786.18 states that the following information cannot be included on investigative background checks.
  • Arrests, indictments, misdemeanor complaints, and convictions older than 7 years.
    • If an individual receives a full pardon for any of the above, then it cannot be included even if the 7 year mark has not been reached.
    • Arrests and related information cannot be reported if a conviction did not occur, but pending charges can be reported.
  • Unsatisfied judgments older than seven years.
  • Bankruptcies older than ten years.
  • Other adverse information older than seven years.

Use Of Consumer Credit Reports

California Civil Code 1785.20.5 states that if an employer wishes to run a credit report on an applicant ore employee, then the following must occur:
  • The person must be advised of and authorize the report.
  • The person must have an option to receive a free copy of the report at the same time as the employer.
  • If employment is denied based on the credit report, then the person must first be advised that an adverse action is being considered and be given the name and address of the Consumer Reporting Agency that produced the report.

Permitted Uses Of Consumer Credit Reports

California Labor Code 1024.5 states employers may only use credit reports for employment purposes when considering applicants for the following:
  • Managers
  • Positions in the State Department of Justice
  • Law enforcement positions
  • Any position for which a credit report is required by law
  • Positions that provide access to proprietary or confidential data.
  • Any position that offers regular access to cash totaling ten thousand dollars
  • A position that requires regular access (other than the solicitation and processing of credit card applications) to the following information or duties:
    • Bank information
    • Credit Card information
    • Social Security Numbers
    • Date of Birth
    • Being a signatory on a bank or credit card account
    • Transferring money on behalf of an employer
    • Establishing financial contracts on behalf of an employer

California Labor Code – Drug Screenings

California Labor Code 222.5 states employers cannot ask job applicants to cover the cost of a drug screening.

Los Angeles Ban The Box Laws

Employers in Los Angeles must also be aware of a Ban The Box Law known as the Los Angeles Fair Chance Initiative for Hiring Ordinance (FCIHO) 184652. It creates new laws for employers (this includes individuals, groups of people, corporations, firms, associations, partnerships, labor organizations or any other type of organization that has at least ten employees) located or doing business in Los Angeles:
  • Employers are not allowed to include questions about whether or not a person has a criminal conviction on job applications. Employers may check for criminal convictions as part of a background screening process, but only after a conditional job offer has been extended.
  • When posting job openings, employers must state that they will consider qualified candidates that have criminal histories based on requirements from Ordinance 184652.
  • Employers must post a notice in all workplaces, including temporary work sites, that informs employees and job seekers of their new rights under the Ordinance. It must be placed in a "conspicuous" place so it can be easily seen. View the Notice.
  • If an employer has an agreement with a labor union, they must send the aforementioned Notice to the union or an authorized union representative.
  • Before denying employment due to a criminal record, employers must follow the Fair Chance Process which requires a written assessment for each applicant. See the required assessment form. After completing the assessment form, employers must wait a minimum of five business days before pursuing an adverse action to ensure the applicant has time to review.
  • If an applicant offers information that should be considered, the employer must take time to review and re-assess the applicant. When an employer chooses to proceed with denial of employment, they must first inform the applicant and offer a completed copy of the re-assessment.
  • Before denying employment, the employer must show, in writing, that the applicant's criminal history creates a relevant risk for the position to which they are applying.
  • Employers must keep a copy of all records that are part of an individual's application process for a minimum of three years. During that time, employers must provide these records to the Department of Public Works, Bureau of Contract Administration if asked to do so.
  • Employers may not terminate, reduce compensation for or take any other form of adverse action against an employee who files a complaint with the City of Los Angeles that alleges the employer is not complying with the Ordinance.
Backgrounds Online provides details about State Laws for informational purposes only. We do not provide legal services. Nothing on these pages or our site should be considered as legal advice or opinion.