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California

CA: We Are Now a Protected Class!

If you, like most of us, have a conviction on your record, beginning on January 1, 2018 you will belong to what might be called a “protected class” for hiring purposes. The California State Legislature passed and Governor Brown signed AB 1088 that will require employers to remove the “Box” on employment forms and require that they not ask any questions related to an applicant’s criminal background. Of course, if you live in the City of Los Angeles or San Francisco, a more stringent law is in place.

AB 1008 requires that private employers (public employers are already covered under the law) who have more than 5 employees, not ask about criminal background (either on a form or in an interview). The law goes so far as to require that employers “not consider” your background until after a conditional job offer has been made. By the way, all job offers are conditional unless they send you a contract stating otherwise! While this is not as stringent as the original text of the proposed bill, it is a big step forward. How often have you thought “if only I could talk to them, and if they could get to know me, I would have a chance at getting hired”? Now is your chance, spruce up your resume and cover letter.

If you still think you might get turned down, the bill takes it a step further. If an employer makes a conditional offer of employment and learns of your criminal background, and elects to disqualify you for the job, they must show that there is a “direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.” This is often referred to as the “nature-time-nature relationship.” In simpler terms, the nature of the offense, the time since conviction/release and the nature of the job. If you apply for an engineering job and it has been 10 years since you were released for lewdness with a minor, you probably have a good argument to be hired. Unfortunately, the law does not require employers to document their process, called an “individualized assessment”.

If the individualized assessment causes the employer to decide that the applicant’s conviction history is disqualifying, then the employer must provide a written notice. The written notice will require the employer to: identify the conviction at issue; include a copy of any conviction history report (which means the notice is required regardless of whether the employer did their own Google search or paid an outside source for the conviction history); explain the applicant’s right to respond to the notice before the employer’s decision becomes final; state the deadline for that response; and tell the applicant that the response may include evidence challenging the accuracy of the conviction history and evidence of rehabilitation or mitigating circumstances.

You as the applicant then have five business days to respond to a preliminary notice. The employer, in making its final employment decision, may, but need not, explain the reasoning for its final decision. (Note that the City of Los Angeles ordinance, by contrast, requires employers to document the individualized assessment and to give the applicant a copy of it before making a final decision.)

If you notify the employer within five business days that you dispute the accuracy of the conviction history and are taking specific steps to obtain evidence, then you have an additional five business days to respond. The employer must consider any information the applicant submits before the employer can make a final decision.

If an employer, after considering the above information decides to deny employment based solely or in part on conviction history, a second written notification must be provided to the applicant, which must include: the final denial or disqualification; any existing procedure the employer has to challenge the decision or request reconsideration; and the right to file a complaint with the California Department of Fair Employment and Housing.

The employer may, but need not, explain its final decision. (Under the City of Los Angeles ordinance, when the applicant provides any additional information upon receipt of the employer’s first notice and its initial completed assessment, the employer must complete a re-assessment and provide the applicant with a copy of it while notifying the applicant of the final decision.) There are a few ways for employers to get around this law, perhaps in a future column we can address that.

Bottom line, if you get denied a job in California after January 1 because of the background and you feel it might be actionable, seek an attorney. Section 12952 of the Fair Employment and Housing Act will state on January 1 that an aggrieved individual may sue for the full range of FEHA damages available, including compensatory damages, attorney’s fees, and costs.

— by Mark Judkins

Join the discussion

  1. Eric

    this is definitely good news and a leap in the right direction. Employers will find ways around it if they choose, but clearly politics is turning in our favor.

  2. Last Call...CALL ME BY MY NAME?

    It’s about time! Fairness to gain employment…have a job.

  3. Nicholas Maietta

    So this isn’t just sex offenders this is all convicts. This is actually really good but I’d like to see this for housing as well.

    Ironically those websites that are converting government public records into personal advertising campaigns i e mugshot extortion websites can be brought in to various lawsuits as a result of this. The reason I think this is possible is simply because if it wasn’t for their websites then the Google search would not have yielded much information unless a person’s name showed up in news stories. The interesting thing is is that a person would have to legally go to the official Megan’s Law website to get the actual record but to rely on a third party reposting website that we are all familiar with would let us drag those people into court to answer about their websites and whether they take information from the government websites and modify it in anyway as well as the time frames in which they scour the official databases. This could end up helping other cases because we would then be able to cite this information from existing litigation. I am by no means an expert but I think that the legal minded person would be able to understand what I am after and find a direct path to making this not only feasible but powerful for us. Anyone who relies on a Google search to ascertain information that determines eligibility for work is someone that does need to be sued.

    • Michael

      Doesn’t work.

      They passed something similar in CT a few years back and I still don’t have a job. I ace the interviews but as soon as the background report comes in the offer is redacted. There still needs to be more done to help those with criminal histories get back to work.

      • Mark Judkins

        Michael, I am sorry to hear of your experience in Connecticut. The law that went into effect there )Public Act 16-83)is not as robust as our new California law. In California, the applicant has the opportunity to be notified of the employers action, dispute the action (provide evidence of rehabilitation or of irrelevance or timeliness), and the ability to file a law suit. That is making many of our employers very nervous about taking adverse action and may open more jobs to registered citizens. The law in Connecticut also formed a task force charged to review the new law, and the employment opportunities for people previously incarcerated. The task force was to report their findings (including further changes in the law) by Jan 1, 2018. Perhaps that might offer some benefits.

        • Hopeful

          Hi mark… I was a registered nurse before my non contact case. I am very interested in what u have to say. I give moderator permission to give u my email address.

          • Davidh

            @ hopeful:

            I think you may have a problem in that career field, don’t you think???

            • Hopeful

              @ Davidh- of course… looking at pics of teen girls obviously disqualifies me from recruiting other people with my experience and education… right?

  4. Counting the days

    Doesn’t matter for actual good paying jobs. They simply goigle your name. Then when they discover you are listed, they tell you they no longer have opening.
    My expertise is in healthcare field, so I will always be turned down. I have experienced this multiple times already. The state has destroyed my future by demanding fingerprinting for all healthcare related occupations. I’m fucked no matter what law they pass.

    • Mark Judkins

      It is true that healthcare and teaching (as well as law enforcement and others) are exempt from this law. Those all require a live scan rather than a simple background check. There are other ways to use your knowledge. I was a PhD Scientist before my incarceration. Now I recruit scientists and others. I would encourage you to look at healthcare recruiting positions. There are a lot of recruiting companies that will hire you because you have a healthcare background even with no recruiting experience. Many hire people in virtual roles – meaning no background check at all. I would be glad to talk with you offline. Just reply back giving permission and I will see if the webmaster will give me your email or provide you with mine.

    • Laura

      Yes indeed… I was also thinking the same thing in regards to a potential employer using Google on an applicant’s name prior to scheduling an interview. Is there any advice on how to work around that? My family member’s name was put in the media by Law Enforcement just to help bolster their case, some years ago. Their name as of now on a Google search will pop up and most likely will again 10 years from now.

      • Mark Judkins

        Technically under the new law in California, any employer that conducts any investigation into an applicants criminal background is in violation. But the law does not prevent an employer from looking for social media sites or other noncriminal information via a Google search. And, as one person in the employment field put it, “we cannot unsee what we have seen.” But, use of that information would technically be illegal. Unscrupulous employers might do this, but they probably would decline to hire once they did know and hope the applicant doesn’t sue. Honest employers and the better places to work will adhere to the law. While some employers conduct Google searches routinely for mid- to high-level positions, most human resources people and employment law attorneys are advising employers not to do them at all. Like all new laws, there will be law suits to iron out the details. The laws on gender, sexual orientation, and race/ethnicity discrimination made great changes in employment practices, but it took many law suits to iron that out. We are the next in line to challenge employers, and I am glad we are finally in the line.

        • Tim Moore

          I was curious and went on one of those background check sites, and they had a disclaimer that the information was not to be used in employment decisions. I wondering if that is new, because of this law.
          As explanation of why I as on that site, I met someone at one of the San Diego meetings who was unemployed. I wanted to help, but the number he gave is no longer good. So I tried to do an internet search. Hope he is doing O.K. It was a year or two I met him. I did not pay for the report. I don’t want to support those sites, and it is really uncomfortable prying into someone’s life. Glad to see those sites can not be used by employers.

      • The Original Michael

        What is stopping them from doing background checks with any of the companies on the Internet after receiving your application or resume?

        ….

  5. Davidh

    just like with the registry;

    California is filled with a population of convicts that cant find a job so they must legislate out their past tough on crime nonsense or have a State of unemployed.

    They’ve created their own problems!

    • New Person

      This is true. Instead of fixing the infrastructure to help convicts or former convicts to re-integrate into society or sooner than later, they are holding down a subset of the population.

      Ca Constitution, Art 1, Sec 1:
      “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”

      I want to highlight “pursing and obtaining … privacy”. Privacy is what is about to make one’s life start over again. Notice all the laws or procedures that hint at privacy, but it isn’t set up as a direct pathway for convicts and former convicts to achieve. After 7 years, your offense does not show up on background checks, unless you’re a registrant. There have been ban the box initiatives before, but this newer version is more robust as you can only be denied after you have been offered a job and written on paper why you were denied from a private company. It still excludes occupations offered by the government.

      What California has done was simply try to reduce all those in captivity with Prop 47 (low level crimes are declared misdemeanors, except for registrants) and Prop 57 (early release from prison, except for registrants/sex offenders). Yes, the charges are misdemeanors now, but the conviction still stands.

      Notice how all the immunities exclude registrants, as if the level a registrant is doesn’t matter because they’re all heinous monsters of the highest severity. But I digress…

      CA only wants to reduce the jail population, but the convictions stay. Why not make 1203.4 a full expungement? That way all those that do qualify for it get a clear record and start over again. You know, that whole pursuing and obtaining privacy thing in the Ca Constitution. Also, why not make it easier to achieve 1203.4 if you were never on probation and given just a misdemeanor?

      That is probably because CA is vain in showing it is tough on crime, feeding the meme that criminals are always criminals. To the state is working backwards to avoid making true changes in the legislation.

    • The Original Michael

      In PA, a conviction may only be used to the extent that it relates to the job you are applying for. So, a bank could use an embezzlement or bank robbery conviction, but not a conviction for possession of ganja.

      ….

  6. Neil

    Great write-up, Mark. Thank you!

  7. Aero1

    Reading the comments on this article was hilarious like so many people came through with real hard core facts. Why people are reporting fake news just to cause Mass Hysteria. I don’t like Donald Trump but I’m starting to believe this fake news thing like people are really going out of their way to make up lies to start a Witch Hunt so good job to everybody who posted comments and facts on this article good job to you all.It shows we’re not going to lay down and let them just roll over us like we’ve done in the past those days are over it’s time for everybody to stand up and fight 🤓

  8. Steve

    I post this to give hope to others that maybe facing despair, thinking of their future. I was released from jail in 2004 after serving my time for a sex offence. I had basically given up any hope of ever finding a good job. My past jobs were all in the Telecommunications/IT industry. I thought no longer would I be able to use my Systems Engineer skills and would have to take on other jobs such as truck driving or other low skilled jobs. I went ahead though and posted my resume on several IT job site boards and eventually got hired. That first job lasted about 8 months, but the hiring manager left and the person who took over found out about my offense and let me go. I again posted my resume and another company hired my even though I provided all the information about my conviction and included what I have done to be sure I never offend again. I have now been working at that company for over 8 years without any issues. So for others similarly situated, do not give up hope, not taking action to better yourself is the same as an automatic no.

    • BSL

      Yep, The jobs are there. I have worked at a Hospital for 20+ years since mine. I’m in IT. I had one count of indecent exposure, adult related, and was put on registry for the rest of my life. Go figure! But I just wanted to pass on hope to others as well. Although there are issues with long term care facilities according to the registrant rules, Hospitals are not considered long term care. It even says that on the yearly 290 form they make you initial 20+ boxes.

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