On January 1, 2018, a new California law will take effect, drastically changing the ways an employer may utilize evidence of criminal history in making employment decisions.
Presently, most forms inquire into previous convictions; effective January 1, 2018, this practice will be illegal. Employers may no longer include on any application for employment any question that seeks disclosure of the applicant’s criminal history (whether an arrest, conviction or otherwise).
Employers also may not inquire (verbally by way of interview, or in any other way) into any criminal history until after a conditional offer of employment has been made; Govt. Code § 12952(a)(2);
POST OFFER PRELIMINARY DECISION
If an employer intends to deny an applicant a position after conducting a (post-offer) background check, then the employer must undertake an individualized assessment of whether the applicant’s conviction has a “direct and adverse relationship with the specific duties of the job…” Govt. Code § 12952(c)(1)(A). The individualized assessment should consider the following:
- Nature and gravity of the offense;
- The time passed since the offense occurred;
- The nature of the job sought; Govt. Code § 12952(c)(1)(A)(i)-(iii)
Currently, a “pre-adverse action” letter is sent to applicants if a conviction prompts withdrawal of an offer. The pre-adverse action letter focuses on allowing the employee to contest the accuracy of the report. Under the new law, that form will need to be amended, such that if the employer decides that the applicant’s criminal history should disqualify the applicant the employer must provide the applicant notification of such a preliminary decision in writing. Govt. Code § 12952(c)(2) and must include the following:
- Notice of the disqualifying conviction;
- A copy of the background check report;
- An explanation of the applicant’s right to respond before the decision becomes final, including notifying the applicant “that the response may include…evidence challenging the accuracy of the…report…[or] evidence of rehabilitation or mitigating circumstances…” Govt. Code § 12952(c)(2)
- The applicant must be provided at least 5 days to provide an explanation, and if the applicant needs additional time to substantiate his or her explanation, then an additional 5 days must be provided. Govt. Code § 12952(c)(3) (The pre-adverse action letter time limit of ten days will be sufficient.)
If the employer makes a final decision to rescind a conditional offer, then the employer must notify the applicant of the following:
- The final decision (the employer may choose whether to explain or not);
- Any existing procedure the employer has for the applicant to challenge the decision;
- The right to file a complaint with the department (DFEH). Govt. Code § 12952(c)(5)(A)-(C)
Contact our employment attorney if you need any help or have any questions in preparing for this big change!