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Earlier this year, California introduced Senate Bill 809 (“SB 809”), or the “Fair Chance Act” which would “revise, recast and expand” the state’s current restrictions regarding background checks for job applicants. Currently, under California’s current version of the Fair Chance Act (otherwise known as the "Ban the Box" law), California employers can conduct a criminal background check for most positions only after making a conditional offer of employment. If the employer intends to deny employment based upon an applicant's criminal background, the employer must follow a challenging multi-step protocol, which includes making an assessment that links the applicant's criminal history to the duties of the position, providing written notice to the applicant of the employer’s intent to withdraw the offer and allowing the applicant five (5) days to provide additional information to the employer to reconsider its initial determination. For more information about California’s current Ban the Box law, please see our previous Compliance Matters article here.
However, SB 809, if passed into law, would make it an unlawful employment practice for employers to ask an applicant about or take an adverse employment action on the basis of an applicant’s particular conviction unless, pursuant to any federal law or regulation or state law, the employer is prohibited from hiring an applicant who has that particular conviction. Employers may not take adverse action against any applicant on the basis of their preemployment arrest or conviction history until after the employer has made a conditional offer of employment, transfer, or promotion to the applicant.
In these circumstances, employers would be prohibited from rejecting applicants based on their conviction history without first conducting an individualized assessment as to whether their conviction history has a “direct and adverse” relationship to the job.
The bill would also prohibit certain actions based on an applicant’s criminal background, such as ending an interview, rejecting an application, or otherwise terminating the application process based on the applicant’s conviction history. To note, SB 809 would make it illegal for employers to take adverse action against existing employees based on their criminal backgrounds as well.
Further, if the law is enacted, employers will be required to post a clear and conspicuous notice informing applicants and employees of their rights regarding criminal background checks. If enacted, this bill would greatly restrict employers from using criminal history as a basis for denying employment to an applicant.
We will continue to monitor SB 809 as it makes it way through the legislature. As always, if you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at (818) 508-3700 or visit us online at www.brgslaw.com.
Sincerely,
Richard S. Rosenberg
Katherine A. Hren
Sherry N. Shayan
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