New California Labor Law Affects Employee Criminal Background Checks

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Last year, the State of California passed a series of labor and employment bills that affect state labor and hiring practices. These laws, which were signed by Governor Jerry Brown and went into effect on January 1, 2018, relate to (among other things) workers’ wages and hours, leaves of absence and benefits, hiring practices, health and safety issues and other workplace protections. One of the most controversial laws is restrictions on how and when employers can request and use information about an applicant’s criminal history.

What is AB 1008?

Prior to 2018, California employers were already barred from making a decision on hiring a potential employee based on arrests or detentions that did not result in a conviction. The new law, Assembly Bill (AB) 1008, puts into place even stronger anti-discrimination measures. Companies with five or more employees must comply with the following:

  • They cannot seek the disclosure on an employment application of the applicant’s conviction history;
  • They can’t require or consider conviction history until a conditional offer has been made to the applicant; and
  • Employers may not “consider, distribute, or disseminate information related to specified prior arrests, diversions, and convictions.”

The “Individual Assessment” Requirement

AB 1008 also draws out the process for a company looking to deny employment to an individual based “solely or in part” on the applicant’s conviction history. Companies wishing to do so must first prepare an “individualized assessment” of whether the employee’s criminal history will have a “direct and adverse” relationship to the position’s duties. If not, the criminal history cannot be considered as a condition of employment. If it does (example: a person convicted of wire fraud applying for a financial management job), the employer must notify the applicant in writing of the decision, at which time, the applicant has five business days to respond before the employer can make a final decision. If the applicant challenges the accuracy of the conviction history, that person has an additional five business days to produce evidence and respond to the individualized assessment.

While AB 1008 may make criminal background checking more complex, it’s vital to work within the parameters of the law and protect the business from unpleasant surprises regarding employee criminal activity. The National Employment Law Project estimates that one out of three California adults has an arrest or conviction record.

To avoid running afoul of the new laws (which also limit what potential employers can ask about salary history), many companies are turning to professional third-party background screening companies such as Ontario, California-based DataCheck that understand the new rules and statutes. Even if you’re not hiring in California, 30 states and approximately 150 cities and counties have adopted some sort of “fair chance” hiring laws. Ensure you’re not inadvertently breaking these laws by offering training for your HR workers and calling in the help of professional background checking services.

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