California poised for major change in fair employment law

The California legislature has approved, and sent to the governor’s desk for signature, a bill that would dramatically expand protections for people with a criminal record under the state’s Fair Employment and Housing Act (FEHA).  Currently FEHA bars only discrimination that has a racially disparate effect.  If signed by the governor as expected, the new law will independently prohibit discrimination based on criminal record by most public and private employers, subject to FEHA’s administrative enforcement scheme. California will become only the fourth state in the country to extend the full protections of its fair employment law to individuals with a criminal record.  (The others are New York, Wisconsin, and Hawaii). 

AB 1008 provides that non-conviction records may not be considered at all in any employment decision by a covered employer (one with more than five employees), and makes violation of this an unfair employment practice under FEHA.  Non-conviction records include records of convictions that have been dismissed pursuant to California’s set-aside law, and convictions that have been sealed or expunged.

The bill would extend California’s existing ban-the-box law by making it an unfair emplyment practice to inquire into an applicant’s conviction record before the employer has made a conditional offer of employment.  (Existing law prohibits such inquiry only until an applicant is determined to be qualified.)

The bill would require an employer who intends to deny employment solely or in part because of the applicant’s conviction history, to make an individualized assessment of whether this has “a direct and adverse relationship with the specific duties of the job.”  In making that individualized assessment, the employer must take into account (i) The nature and gravity of the offense or conduct; (ii) The time that has passed since the offense or conduct and completion of the sentence; and (iii)The nature of the job held or sought.

The bill would also require an employer who makes a preliminary decision to deny employment, based on that individualized assessment, to provide the applicant written notification of the decision, and provide a variety of procedural protections thereafter.

The bill also appears to restrict what information background screening companies may report insofar as they are acting as agents for a covered employer, prohibiting distribution or dissemination of nonconviction information “while conducting a conviction history background check in connection with any application for employment.”  (Like similar prohibitions on background screeners under Indiana’s expungement scheme, any new restrictions that go beyond the provisions of FCRA, as these do, may raise questions of federal preemption.)

The bill exempts any position where 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.

We will be reporting further on this very important legislation in the days ahead.