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

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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.

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

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.

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.

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!

Great write-up, Mark. Thank you!

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 🤓

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.

what i’m curious about is it states this is part of the department of fair housing and employment. does that mean that rental applications for housing are no longer able to ask this?

I looked up the bill you listed and had to do further research to find it. The correct bill is AB-1008. Thanks for posting. This is good news and takes a lot of fear out of finding employment.

Does this affect housing as well? If sex offenders are now a protected class under A.B 1008 Then landlords may no longer refuse tenancy for housing, correct?