New California Laws, Part 1

Image courtesy of phasinphoto at FreeDigitalPhotos.net

A number of new laws affecting employers and the workplace took effect on January 1, 2018. We’ll explain them in a trio of upcoming blogs, along with best practices to comply. The first New California law we’ll address is AB 1008, the California Fair Chance Act.

AB 1008 extends the 2014 “ban the box” law to private employers. California thus becomes the tenth state to require both public- and private-sector employers to delay background checks and inquiries about job applicants’ conviction history until after they make a conditional job offer to the applicant.

The law, which applies to all employers with at least five employees, is intended to ensure fair consideration for workers with conviction records.

Assessments

An employer who decides to deny a job because of a prior conviction will have to complete an “individualized assessment” to determine whether an applicant’s conviction history has a “direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.”

Employers have to consider:

1. The nature and gravity of the criminal offense
2. The time that has passed since the offense and completion of the sentence
3. The nature of the job sought

Notification

An employer who decides to deny employment based on the assessment must notify the applicant in writing, identify the convictions that caused the denial, and provide a copy of the conviction history report.

The applicant has five days to respond. He or she can dispute the accuracy of the information or point to evidence of rehabilitation or mitigation.
The employer must consider any information the applicant submits before making a final decision.

If the employer make a final decision to deny employment – in part or wholly because of the appicant’s conviction history – the applicant will get a second written notification, which will include:

1. The final disqualification
2. Existing procedures to challenge the decision or request reconsideration
3. Notification of the applicant’s right to file a complaint with the Department of Fair Employment and Housing.

Actions to take

California employers should:

1. Revise their employment applications to remove “boxes” or questions that asking about criminal convictions.
2. Review interview guidelines and hiring processes to ensure compliance.
3. Train hiring personnel to avoid questions about conviction history before a conditional offer of employment is made.
4. Adopt individualized assessment and “fair chance” procedures.
5. Review and revise “adverse action” notifications.
6. Ensure proper handling of the use of criminal records in the hiring process