On October 14, 2017, the governor of California signed a statewide ban-the-box law that goes into effect on January 1, 2018. For California individuals, the law places statewide limitations on most pre-conditional offer inquiries into an applicant’s criminal history; prohibits the consideration of certain criminal history information, at all times; and creates a robust pre-adverse and adverse action process.
Coverage and Exceptions
The proposed law applies to employers with five or more employees. However, it does not apply to any of the following:
- a position for which a state or local agency is otherwise required by law to conduct a conviction history background check;
- a position with a criminal justice agency;
- a position as a Farm Labor Contractor; and
- a position in which an employer is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history (e.g., entities governed by a self-regulatory organization as defined in the Securities Exchange Act of 1934).
Under the proposed law, it is an unlawful employment practice for an employer to do any of the following before a conditional offer of employment is extended:
- include on any application for employment any question that seeks the disclosure of an applicant’s conviction history (including certain pending arrests); or
- inquire into or consider the conviction history of an applicant.
Restrictions: Consideration of Information
The bill also makes it an unlawful employment practice for employers to consider, distribute, or disseminate information about any of the following while conducting a criminal check in connection with an application for employment:
- arrests that are not followed by a conviction, except when an individual is out on bail or his or her own recognizance pending trial (i.e., stale arrests);
- a referral to or participation in a pretrial or post-trial diversion program; and
- convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.
The bill makes clear that these prohibitions should not be construed to prevent an employer from conducting a background checks that do not conflict with these three requirements, so long as they are done in accordance with the new timing and other requirements and restrictions. For example, employers are not prohibited from considering convictions that are unsealed or not dismissed.
Pre-Adverse/Adverse Action Process
The law sets up a pre-adverse and adverse action process that is similar to the process required by the Fair Credit Reporting Act (FCRA) and Title VII of the Civil Rights Act, with some important distinctions.
The Individual Assessment: Does the conviction history have a relationship with the duties of the job?
An employer that is considering denying an applicant a position of employment, based in whole or in part on the applicant’s conviction history, must assess whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.
In making the assessment, the employer must consider the following three factors:
- the nature and gravity of the offense or conduct;
- the time that has passed since the offense or conduct and completion of the sentence; and
- the nature of the job held or sought.
The California law confusingly calls this process an “individualized assessment” (a term that the Equal Employment Opportunity Commission (EEOC) uses to describe the analysis of any information provided by the individual in response to a pre-adverse action letter), rather than a “targeted screen” (the term the EEOC uses to describe the consideration of these three factors before deciding whether to send a pre-adverse action letter). The good news for employers is that if you are following the EEOC’s Guidance on the Consideration of Arrest and Conviction Records, then you are already complying with this requirement. The law also states that an employer may, but is not required to, commit the results of this individualized assessment to writing.
Pre-Adverse Action Letter Requirements
If, based on the initial assessment, the employer makes a preliminary decision to potentially disqualify the applicant from employment based on his or her conviction history, the employer must notify the applicant of this preliminary decision in writing. The notification/pre-adverse action letter (PAAL) must contain all of the following:
- Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer.
- The employer is not required to justify or explain its reason or the basis for the preliminary disqualification decision, but may do so if it chooses to. (The employer must specify/identify the conviction, as mentioned above.)
- A copy of the conviction history report, if any.
- An explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before the decision becomes final and the deadline by which to respond.
- This explanation must inform the applicant that his or her response may include a submission of evidence challenging the accuracy of the conviction history report on which the offer rescission is based and/or evidence of rehabilitation or mitigating circumstances.
Pre-Decision Response Time
After sending a pre-adverse action letter, the employer must give the applicant at least five business days to respond to the notice/PAAL before making a final decision. This requirement mirrors the most commonly-used FCRA reasonable waiting period. If, within the five business days, the applicant notifies the employer in writing that he or she disputes the accuracy of the conviction history report and that he or she is taking specific steps to obtain evidence supporting that assertion, then the applicant has five additional business days to respond to the notice/PAAL. This additional time period is above that required under federal law. The employer must consider information submitted by the applicant before making a final decision.
If an employer makes a final decision to deny an application based in whole or in part on the applicant’s conviction history, the employer must notify the applicant in writing of the following:
- The final denial or disqualification.
- The employer may, but is not required to, justify or explain the employer’s reasoning for making the final denial or disqualification.
- Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration.
- The right to file a complaint with the California Department of Fair Employment and Housing.
California’s ban-the-box laws and the laws of other jurisdictions, including federal, state, and local background check requirements, are summarized in OD Comply: Background Checks and OD Comply: Employment Applications subscription materials, which are updated and provided to OD Comply subscribers as the law changes.