Quick Hits
- Assembly Bill (AB) 2095, introduced in the California Assembly, proposes significant amendments to California’s ban-the-box law, the Fair Chance Act.
- The bill’s provisions, among others, would require employers to provide a list of specific job duties that may be relevant to the employer’s subsequent assessment of conviction history and establish a rebuttable presumption regarding conviction-to-job relationships.
- AB 2095 would also require employers to document their assessments in writing and provide them to the applicant.
Current California Background Check Restrictions
The California Fair Chance Act restricts employers with five or more employees from seeking disclosure of an applicant’s conviction history on an application or inquiring about or considering an applicant’s conviction history before a conditional job offer. Employers considering taking post-offer adverse action based on an applicant’s conviction history are required to conduct an assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justifies adverse action. In conducting this assessment, employers must consider a host of factors and sub-factors set forth in the associated regulations. The law applies to internal and external applicants, as well as to employees whose criminal history is reviewed and considered because of a change in ownership, management, policy, or practice.
After completing an initial assessment, the existing law requires an employer to send a written notice (a pre-adverse action letter) to the applicant of the potential adverse action; allow at least five business days for the applicant to respond with additional information, including evidence of the applicant’s rehabilitation and/or mitigating circumstances; allow an additional five business days if the individual notifies the employer that they dispute the accuracy of the conviction history report; and consider any new information before making a reassessment. If the employer ultimately decides to revoke its conditional offer based on criminal history information, it must send a letter (an adverse action letter) notifying the applicant of the decision.
Pre-Offer Restrictions and New Prohibitions
AB 2095 would expand existing pre-offer restrictions by prohibiting employers from including on any employment application any question that directly or indirectly seeks disclosure of conviction history or consent for a background check. Employers would also be barred from requesting consent for or initiating a background check before providing the applicant with a list of specific job duties with which a conviction may have a direct and adverse relationship. Additionally, the bill would prohibit requiring applicants to cover background check costs, self-disclose conviction history, or provide documentary evidence of conviction history or rehabilitation at any time. The bill would add an explicit anti-retaliation provision protecting the exercise of rights under Section 12952.
Individualized Assessment and Rebuttable Presumption
AB 2095 would strengthen the individualized assessment process by requiring the employer to demonstrate that its assessments were made reasonably and in good faith. Further, the employer’s assessment would have to be committed to writing. The bill would also establish a rebuttable presumption that the conviction-to-job relationship does not justify denial if the applicant has completed the sentence (excluding parole, probation, or supervised release) or holds a required government-issued credential.
Enhanced Notification and Response Procedures
The bill would strengthen the multistep notification process for adverse decisions. A pre-adverse action notice would have to include the employer’s reasoning and a copy of the written individualized assessment, in addition to the current law’s requirements to include the disqualifying conviction(s), the conviction history report, and the applicant’s right to respond. In addition, AB 2095 would increase applicants’ response time from five business days to ten additional business days if the applicant disputes the report’s accuracy. After receiving a response, the employer would be required to document the individualized reassessment in writing. If the employer ultimately decides to take adverse action, in addition to current requirements, the employer would have to include its reasoning and a copy of the written individualized reassessment in the adverse action letter.
Key Definitions
The bill would broaden the definition of “applicant” to include individuals “seeking … continued work,” making clear the law would apply to all employees. It would also define a “conditional job offer” as one that is written. The current law does not require a conditional offer of employment to be in writing. “Conviction history” includes convictions as defined in Labor Code Section 432.7, specified health facility arrests, and arrests for which an individual is out on bail or his or her own recognizance pending trial. A temporary paid suspension during the employer’s compliance process would not be considered an adverse action. Remedies under the bill are cumulative with all other rights and remedies, including those under local ordinances.
Ogletree Deakins’ California offices and Background Checks Practice Group will continue to monitor developments and will post updates on the Background Checks and California blogs as additional information becomes available.
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