Contrary to 150 years of law, the California Department of Fair Employment & Housing has now issued new regulations making it more difficult for Employers to deny employment to applicants based upon prior criminal history. Although there has been a movement nationwide to “ban the box,” until now Employers have not been prohibited from refusing to hire applicants based upon actual criminal conviction. The “ban the box” movement seeks to prohibit Employers from denying employment merely because an applicant checks the box and indicates that they have a prior criminal conviction. I have long advised clients that this alone should not be their sole consideration. An inquiry into a what the conviction for a felony was for, and having the applicant explain the circumstances allows the Employer to make an informed decision of whether they wish to hire certain individuals. The new regulations issued by the Fair Employment & Housing Council expands protections for job applicants and employees. The new regulations expand the type of criminal history that an Employer cannot consider; create new notice provisions from the Employer to the applicant if information is obtained, and set out a rather complex scheme by which the applicant or employee can argue that the Employer’s consideration of criminal history has a “disparate impact” on a protected class of individuals.

Under the new regulations, Employers are prohibited from acquiring or considering any non-felony conviction for marijuana possession that occurred more than two (2) years ago. Presumably, this will dovetail into the decriminalization of marijuana under state law and will become irrelevant in the future. Likewise, Employers who learn of a conviction from a source other than the applicant or employee himself/herself must now inform the individual of the decision or the refusal to hire or terminate based on that conviction. Employers previously did not have to disclose any such reasons and now not only do they have to disclose the reason, but the Employer must also allow the individual a reasonable opportunity to present evidence that the criminal history relied upon is inaccurate. If the applicant produces such evidence then the Employer cannot consider the information in making the employment decision.

Following this trend is a current bill pending before the State Assembly introduced by Assembly Member McCarty. Assembly Bill No. 1008 will make it an unlawful employment practice under the Fair Employment & Housing Act for an Employer to include on the application for employment any question that seeks the disclosure of an applicant’s criminal history, or to inquire into or consider the conviction history of an applicant until that applicant has received a “conditional job offer.”

Likewise, the new legislation requires that when conducting a conviction history background check, the Employer will have to consider, distribute or disseminate specified information related to prior criminal convictions, and upon receiving information will have to provide an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with specific duties of the job, and will require the Employer to consider certain
topics when making that assessment. Further, if the Employer makes a preliminary determination that there is an impact, the Employer must notify the applicant the reasons for the preliminary decision and allow the applicant up to 10 days to challenge the accuracy of the information. If they do provide mitigating or rehabilitative evidence, the Employer will be required to consider information submitted by the applicant before making the final decision. The Employer will then be required to notify the applicant in writing of certain specified topics.

Although the regulations under the Fair Employment & Housing Act have been passed, the legislation in front of the Assembly is still pending. I encourage Employers who are interested to contact their local Assembly Member or Senator and let them know how you feel about this proposed legislation.