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California’s New Fair Chance Act Expands ‘Ban the Box’ More Than Just Geographically

The Governor of California signed several employment bills into effect this month, including statewide ban the box legislation.  These new laws become effective on January 1, 2018 and will have significant impacts on employers within the entire state.

AB 1008, the California Fair Chance Act, prohibits employers with five or more employees from asking about an applicant’s criminal records or conviction history until that applicant has received a conditional offer of employment.  Then, and only then, may an employer inquire as to the applicant’s criminal history.

The California Fair Employment and Housing Act (FEHA) issued final regulations, effective July 1st 2017, on the consideration of criminal history in employment decisions and this bill confirms what was provided therein.  Specifically, that it is an unlawful employment practice under FEHA for a California employer to consider, distribute, or disseminate information about any of the following:

  • Arrest not followed by a conviction (except in limited circumstances),
  • Referral to or participation in a pretrial or post-trial diversion program
  • Convictions that have been sealed, dismissed, expunged or statutorily eradicated pursuant to law.

The legislation goes further to require employers who intend to deny employment because of a criminal record to make an individualized assessment of that applicant.  They must consider the age, nature, and gravity of the offense and do so with particular regard to the position for which the applicant has applied.  This assessment should be consistent with EEOC Guidelines in the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

If an employer makes a preliminary determination based on the assessment to deny employment, the employer must notify the applicant of the reasons for that preliminary decision in writing and must include the following:

  • The conviction item that is the basis for the potential denial.
  • A copy of the conviction history report.
  • Explanation of the right to respond, and time limit thereof, which shall include the right to submit evidence disputing the accuracy of the report, evidence of rehabilitation or mitigating circumstances, or both.

The applicant has five business days to respond with a dispute of accuracy or information that supports mitigation or rehabilitation.  If, within the five business days, the applicant notifies the employer in writing of a dispute or mitigating circumstances, then the applicant shall have five additional business days to respond to the notice.

The employer shall consider information submitted by the applicant during the pre-adverse process prior to making a final decision on hiring the applicant.  If that final decision is to deny employment, an employer must notify the applicant in writing with the following information:

  1. The final denial.
  2. Any existing procedure the employer has to challenge the decision or request reconsideration.
  3. The right to file a complaint with the Department of Fair Employment and Housing.

Best Practices Tip: California employers should act now to prepare themselves for implementation of this new law to ensure they are in compliance, as of January 1, 2018.  They should update their employee and hiring manuals and train hiring personnel to avoid all questions pertaining to criminal histories until a conditional offer of employment has been made and to ensure proper handling of the use of criminal records in the hiring process.

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