1 Bender on Privacy and Data Protection § 23.20 (2020)
Effective January 1, 2017, California enacted a law
1 imposing obligations on employers with at least five employees in relation to rejecting an employment application on the basis of conviction of a crime. Pursuant to this law, it is an unlawful employment practice for such an employer to:
- include on an employment application, before the employer makes a conditional offer of employment, any question that seeks disclosure of an applicant’s conviction history;
- to ask about or consider said conviction history until after the employer makes a conditional offer of employment;
- to consider or distribute information about the following without conducting a conviction history background check in connection with the application:
o arrest not followed by conviction (with exceptions);
o referral to or participation in a pretrial diversion program; or
o sealed, dismissed, expunged, or statutorily eradicated convictions; or
- to interfere with the exercise or attempted exercise of any right provided in this law.
Further, an employer that intends to deny an application solely or partly because of conviction history must assess whether that history has a direct and adverse relationship with the specific duties of the job that justify the denial, considering the following:
- nature and gravity of offense;
- time that has passed since offense or completion of sentence; and
- nature of job.
An employer that makes a preliminary decision that conviction history disqualifies an applicant must notify the applicant in writing, specifying:
- the particular conviction(s) that is the basis;
- a copy of the conviction history report if any; and
- an explanation of applicant’s right to respond before the decision becomes final, and to dispute accuracy of the report, and offer evidence of rehabilitation and mitigating circumstances.
The applicant then has at least five business days to respond to the notice before the employer may make a final decision. If, within that period, the applicant disputes the accuracy of the report in writing and states that he or she is taking specific steps to obtain supporting evidence, the applicant has an additional five business days to respond to the notice. The employer must consider any such evidence before making a final decision. If it makes a final decision to deny solely or in part because of the conviction history, it must notify the applicant in writing of:
- the final denial;
- any existing procedure the employer has for the applicant to challenge the decision or request reconsideration; and
- the right to file a complaint with the California Department of Labor.
This law does not apply to any position:
- for which a state or local agency is otherwise required to conduct a conviction history background check;
- with a criminal justice agency;
- as a Farm Labor Contractor; or
- where an employer is required by any law to conduct criminal background checks for employment or to restrict employment based on criminal history.
Footnotes — § 23.20: