Effective January 1, 2018, the Fair Employment and Housing Act will include new restrictions on an employer’s ability to make pre-hire and during-employment decisions based on an individual’s criminal history. California employers with five or more employees are prohibited from asking any applicant to disclose conviction information until the applicant is determined otherwise qualified for the position.
Specifically, employers no longer may:
- Include on an application for employment any question that seeks the disclosure of an applicant’s conviction history;
- Inquire into or consider the conviction history of an applicant before the applicant receives a conditional offer of employment.
It remains the law that an employer may not consider, distribute, or disseminate information about the following: (1) an arrest that did not result in a conviction (2) referral to or participation in a pretrial or post-trial diversion program; and/or (3) convictions that have been sealed, dismissed, expunged or statutorily eradicated pursuant to law.
Under the new law, consideration of an applicant’s criminal history is permissible only after the employer has made a conditional offer of employment. Once that offer has been made and the criminal history obtained, an employer cannot deny an applicant a position solely or in part because of conviction history until the employer performs an individualized assessment that links the relevant conviction history with specific job duties of the position sought. In particular, the assessment needs to consider (1) the nature and gravity of the offense and conduct; (2) the time that has passed since the offense or conduct and completion of the sentence; and (3) the nature of the job held or sought.
If an employer intends to disqualify an applicant based on the conviction, the employer first must notify the applicant in writing. In doing so the employer must: (1) provide the written notice of the disqualifying conviction that is the basis for the decision to rescind the offer; and (2) include a copy of the conviction history report, if any; and (3) advise the applicant that he/she has the right to respond to the notice within at least five business days, and that the response may include submission of evidence challenging the accuracy of the conviction record, or evidence of rehabilitation or mitigating circumstances or both.
The employer must wait five business days before making a final decision based on the conviction history. And if it learns that the applicant is disputing the conviction history, it must wait an additional five (5) business days to afford the applicant time to dispute. The employer must advise the applicant in writing in the event the applicant nonetheless is rejected based on the criminal history, and must provide the applicant with notice of any procedure the employer has to challenge the decision, as well as notification of the applicant’s right to file a complaint with the Department of Fair Employment and Housing.
