by Teresa A. McQueen and Alan J. Crivaro
Recognizing that a criminal conviction for even a minor offense can significantly impede an individual’s employment chances, California first passed legislation in 2013 to reduce such barriers. Dubbed “Ban the Box,” proponents sought removal of the check box on hiring applications asking about an applicant’s criminal history. Advocates argued that otherwise qualified, skilled job seekers were being unjustly eliminated at the outset by prospective employers due to the existence of a criminal conviction despite the nature of the offense or its remote past. Civil rights activists claimed that disparate inequities in the treatment of certain minorities by the criminal justice system, including convictions for minor drug offenses, continued to harm these groups as they fought to bring themselves out of poverty by entering the job market. This article on California’s latest Ban-the-Box efforts expresses the varied opinions of its authors and provides a generalized overview of this new legislation. It is not offered as an in-depth analysis.
Historically, neither public nor private employers in California were permitted to ask applicants about arrests or detentions that did not result in a conviction. The reason for this was that in the absence of a conviction, the relationship of the arrest or detention to aberrant behavior was simply too tenuous. Ultimately, increases in employment opportunities for past criminal offenders leading to a reduction in recidivism and improved economic stability paved the way for Labor Code section 432.9. The statute prohibited state, county, and city agencies from requiring disclosure of any criminal conviction until after a determination that the individual meets minimum qualifications for the position. Correspondingly, by 2015, all federal agencies were directed to refrain from similar inquiry on initial government job applications. Subsequently, five states and several major cities adopted fair chance hiring laws extending Ban the Box practices to private employers.1
In 2017, California revisited Ban the Box with the enactment of Assembly Bill 1008 and the repeal of Labor Code section 432.9. Effective January 1, 2018, California Government Code section 12952 provides expanded protections and greater purview in keeping with the legislature’s findings that nearly one in three adult Californians have an arrest or conviction record impacting their ability to obtain employment. With its validating and notice strictures on an employer’s inquiries into an applicant’s criminal background history, AB 1008 shifts California into a new realm of discrimination protection.
The Individualized Assessment
California Government Code section 12952 makes several significant changes to current employee selection processes for employers with five or more employees. The statute makes it an unlawful employment practice to ask questions on an employment application about, or to consider an applicant’s, criminal conviction history until after a conditional offer of employment has been made. Consistent with Labor Code section 432.7, a conviction is defined as a plea, verdict, or finding of guilt. It is not necessary that a sentence be imposed by the court. A conviction does not include juvenile court adjudications. Subject to specific exceptions delineated in Labor Code section 432.7, an employer is also forbidden from considering or disseminating certain information when conducting a background check of the applicant’s conviction history. This prohibited information includes an arrest that did not result in a conviction, as well as convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law. An employer may ask about an arrest where the applicant is currently released on bail or on their own recognizance pending trial. Lastly, a candidate’s participation or referral to a pre-trial or post-trial diversion program may not be considered.
Subdivision (c)(1)(A) of the new statute imposes additional steps on an employer who, after making a conditional offer of employment, denies employment based solely or in part on the applicant’s criminal conviction history. In that event, the employer “shall make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.” As part of its individualized assessment, the following enumerated factors must be considered: (a) the nature and gravity of the offense, (b) the time that has passed since the offense; (c) the completion of the sentence; and (d) the nature of the job held or sought. This analysis unequivocally mandates the employer go beyond a mere review of a criminal “rap” sheet. Results of any individualized assessment may, but need not be, committed to writing.
Overall, given the risks associated with making individualized assessments on a case-by-case basis, many employers could benefit from initiating an audit of all current job descriptions. This advanced generalized assessment audit—performed ahead of any specific job posting—will allow employers to make initial determinations as to the types of convictions that would likely disqualify applicants from performing the duties specific to each job reviewed. For example, certain offenses tend to raise red flags for employers. An individual with a felony fraud conviction would likely be disqualified from holding a position of trust such as a bank teller or some other type of financial fiduciary. Of course, there is always the chance an employer could be faced with a set of unique circumstances which would warrant a more individualized assessment, but the goal of the statute is forethought and consideration. If an employer can show a reasoned decision, having followed the letter and spirit of the statute, there is a good chance liability associated with claims of discriminatory hiring or employment practices can be reduced.
The facts underlying a conviction can make all the difference for an informed, individualized assessment. For instance, Penal Code section 487 is the crime of grand theft, a felony in this state. Understandably, employers would be concerned about such a conviction for applicants seeking positions that involve handling money. Knowing the Penal Code statutory number tells an employer very little about the nature or the gravity of the offense or the trustworthiness of the applicant. Ten years ago, a grand theft was defined as the taking of any property valued over four hundred dollars. Given the low threshold, an individual who stole money from a previous employer may not be viewed in the same light as, say, an individual who, a decade ago as an eighteen-year-old, took designer jeans and cosmetics from the local mall. Both individuals committed a grand theft. Both individuals’ conviction history would report the identical Penal Code violation, yet the specifics of the factual basis for each conviction are completely different. As envisioned by the legislature, a properly performed individualized assessment may reveal an otherwise qualified applicant who formerly would not have even been considered a viable job candidate.
Notice Requirements
Along with multi-factored assessment elements, section 12952 also outlines several notice requirements. The first is conveyance of the conditional offer of employment. The statute is silent on whether the conditional offer must be in writing. The second notice requirement comes into play once the employer makes a preliminary decision to disqualify the applicant based on information discovered in the criminal conviction history. Although the employer need not explain the reasoning for its preliminary decision, the applicant must be notified in writing. This notification must advise the applicant of the disqualifying conviction(s) constituting the basis for the initial decision to rescind the conditional offer. If a conviction history report was used, the applicant must be provided a copy. The applicant must also be advised of their right to respond to the preliminary decision before it becomes final. The notice must also provide the applicant a deadline by which they may respond. The applicant should be informed that any response may include submission of evidence challenging the accuracy of the conviction report, evidence of rehabilitation, or any mitigating circumstances.2
Statutorily, the applicant has five business days in which to respond to the notice before the employer can make its final decision. Applicants are given an additional five business days to respond if they notify the employer in writing that they dispute the accuracy of the conviction history report, and show they are taking steps to gather evidence in support of that claim.3 Such evidence in rebuttal could include official court records, court orders, police reports, transcripts, or perhaps even documents from the files of the attorney who represented them in the earlier criminal proceeding. It is worth underscoring that the statute only prescribes a minimum timeframe. Nothing prevents an employer from extending the applicant’s deadline. Realistically, even in this day of electronic records, access to court files and records that have been closed and sent off to storage may, in many counties, take longer than the minimum days provided by the statute. Given these time constraints, it makes sense for applicants with criminal history concerns to try and procure explanatory or mitigating evidence before applying for a position.
Prior to making its final decision, an employer must consider any responsive information provided by the applicant. Should the employer’s ultimate decision be a “no-hire” predicated in part upon the criminal conviction history, a third and final written notice conveying the disqualification decision is required. This notice must inform the applicant of their right to file a complaint with the Department of Fair Employment and Housing and include any procedures the employer has for challenging the decision or reconsideration.4
Final Thoughts
AB 1008 is based on the premise that job applicants should initially be judged on their qualifications and not automatically excluded from consideration for a past mistake. Opponents argue the statute places an employer in an untenable situation, subjecting them to lawsuits for unfair labor practices. Specifically, opponents cite to the potential for mistakes in complying with the statute’s increased notice mandates and difficulties in conducting individualized assessments as some of the requirements that could potentially make compliance too complicated and burdensome for large and small employers.
Arguably, postponing inquiry into the criminal history until after the conditional offer has been made places additional burdens on employers. For employees, the timeframe for responding to a denial is likely insufficient and the applicability of the statute to existing employees remains an ambiguity. But, on balance, public safety is enhanced by a reduction in recidivism. Only by employment can previously incarcerated individuals legally support their families and become productive members of society. Changes in the decriminalization for the possession of drugs, reclassification and reduction of certain offenses, increased diversion, and expungement opportunities were but a few of the recent changes to California law recognizing the need to eliminate barriers to meaningful employment opportunities. Moreover, actions to dismiss, reduce, or seal decades of marijuana-related convictions in various counties across California could potentially see thousands of people with their criminal pasts erased.5
Clearly, AB 1008 is creating ripples of change but, to remain effective, new regulations must be promulgated in the hopes of refining the statute and reducing ambiguities. In the end, for all its challenges, Government Code section 12952 seems to have its heart in the right place. Are the burdens worth the benefits? Only time will tell.
ENDNOTES
Teresa A. McQueen is the founder and principal attorney at SAFFIRE LEGAL, PC where she focuses on employment law, HR consulting, and risk management training. She can be reached at tmcqueen@saffirelegal.com. Alan J. Crivaro is a criminal defense lawyer in Newport Beach. He can be reached at acrivarolaw@hotmail.com. This article is based on a Workplace Perspective podcast recorded in October 2017. To listen to the podcast www.saffirelegal/podcast.