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