TWO TIPS FOR EMPLOYERS AND APPLICANTS FOR 2018: EMPLOYMENT APPLICATIONS MAY NOT ASK ABOUT CRIMINAL CONVICTIONS; EMPLOYERS MAY NOT REQUEST APPLICANTS’ SALARY HISTORY
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 people 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 or more employees:
(1) To include on an employment application, any question that asks the applicant to disclose their conviction history.
(2) To consider or ask about the applicant’s conviction history until after conditional employment offer has been made.
(3) To distribute, disseminate or consider information about (a) arrest with no conviction, (b) recommendation to or involvement in a pretrial or post-trial diversion program, or (c) dismissed, statutorily eradicated, sealed or expunged convictions.
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 means to not offer an applicant employment, in whole or in part, because of a conviction history, the employer has to make an individualized assessment of whether the applicant’s conviction record has an adverse and explicit relationship to the specific job duties. The assessment must consider all of the following: (i) the gravity and nature of the offense or conduct, (ii) the remoteness since the conduct or offense and completion of sentence and (iii) the nature of the job sought. The employer may memorialize the assessment in writing but is not required to.
Notice to applicant: If the employer makes a preliminary conclusion that the conviction record disqualifies the applicant, the employer has to 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(s), (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 business days), and (iv) the applicant’s right to challenge the accuracy of the 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 has to 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 federal, local law or state to conduct preemployment 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 ethnicity for performing substantially similar work requiring the same skills, effort and responsibility when performed under similar working conditions.
Kenneth J. Sargoy, Esq., provides counseling and representation regarding employment matter in California and federal courts and state and federal government agencies. Questions may be directed to Ken at telephone 310-208-1003 or 310-472-7113 or contact him. The office is located at 815 Moraga Drive, Los Angeles, CA 90049. To view the website of The Sargoy Law Firm, click here: http://sargoylaw.com.
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