May 4, 2018

I. Unlawful Employment Practice: Employment Applications Cannot Ask About Criminal Convictions

A. Reasons For New Law

In 2015, President Obama directed all federal agencies to "Ban the Box" and stop asking applicants about their conviction history on the initial employment application. Nationwide, 29 states and more than 150 cities have adopted "Ban the Box" legislation, and more than 300 companies have pledged to provide applicants with what has been called a "Fair Chance" employment opportunity. This includes Los Angeles and San Francisco which have adopted Fair Chance hiring laws that cover both public and private sector employers.

The objective of the law is to prevent disqualification solely because of a criminal conviction. The law permits the applicant to explain past criminal convictions and demonstrate why the applicant should be hired. Its stated purpose is to help formerly incarcerated persons to find and hold employment in order to gain a foothold in society.

B. Employers: Change Your Employment Applications

Effective Jan. 1, 2018, the California Fair Employment and Housing Act ("FEHA"), Government Code Section 12952, prohibits the following acts by an employer with five (5) or more employee:

(1) To include on any employment application, any question that seeks the disclosure of an applicant's conviction history.

(2) To inquire into or consider the conviction history of the applicant until after the employer has made a conditional offer of employment.

(3) To consider, distribute, or disseminate information about (a) arrest not followed by conviction, (b) referral to or participation in a pretrial or post-trial diversion program, or (c) convictions that have been sealed, dismissed, expunged, or statutorily eradicated.
NOTE: A criminal history background check not in conflict with the above is permissible.

C. Employers Must Make Individualized Assessment Of Conviction History's Relationship To Specific Job Duties

The Assessment: If the employer intends to deny an applicant employment, in whole or in part, because of a conviction history, the employer must make an individualized assessment of whether the conviction history has a direct and adverse relationship to the specific job duties. The assessment must consider all of the following: (i) the nature and gravity of the offense or conduct, (ii) the remoteness since the offense or conduct and completion of sentence, and (iii) the nature of the job sought. The employer may, but is not required to, memorialize the assessment in writing.

Notice to Applicant: If the employer makes a preliminary decision that the conviction history disqualifies the applicant, the employer must notify the applicant of the preliminary decision in writing. The notice may, but is not required to, justify or explain the employer's reasoning. The employer must provide (i) notice of the disqualifying conviction or convictions, (ii) a copy of the conviction history report, if any, (iii) an explanation of the applicant's right to respond and time limit of response (must be at least five (5) business days), and (iv) the applicant's right to challenge the accuracy of the conviction history report and/or provide evidence of rehabilitation or mitigation.

Employer's Obligation: The employer is required to consider the information provided by the applicant before making a final decision. If the employer makes a final decision based, in whole or in part, on the criminal history, the employer must notify the applicant in writing. The written notice of disqualification (i) is not required to explain or justify the employer's reasons, (ii) but must notify the applicant of any existing employer procedure for challenging the decision or requesting reconsideration, and (iii) must notify the applicant of the right to file a complaint of discrimination under the California FEHA.

D. Exceptions: The law does not apply to a position (i) with a state or local agency that is required to conduct a conviction history background check, (ii) a criminal justice agency, (iii) as a farm labor contractor; and (iv) where an employer is required by any state, federal, or local law to conduct pre-employment criminal background checks. NOTE: Other exceptions may apply.

E. Applicant's Remedies: Remedies under the California FEHA are in addition to any other remedies permitted by law.

II. Unlawful Employment Practice: Employers Prohibited From Asking About Salary History

Effective, Jan. 1, 2018, it is unlawful for the employer to ask a job applicant's salary history, whether in writing such as an employment application or orally during the application process. Further, it is unlawful to rely on the applicant's salary history as a factor in deciding whether to offer employment or what salary to offer. Upon reasonable request from the applicant, the prospective employer is required to provide a pay scale for the position.

The objective of the law is to strengthen the California Equal Pay Act's prohibition against unequal pay to employees of the opposite sex and employees of different races or ethnicities for performing substantially similar work requiring the same skills, effort, and responsibility when performed under similar working conditions.