Employment discrimination: conviction history., the official text

An act to amend Section 12952 of the Government Code, relating to discrimination.

LEGISLATIVE COUNSEL'S DIGEST

Existing law, the California Fair Employment and Housing Act, except as specified, makes it an unlawful employment practice for an employer with 5 or more employees to include on any application for employment, before the employer makes a conditional offer of employment to the applicant, any question that seeks the disclosure of an applicant’s conviction history, to consider the conviction history of the applicant until after the employer has made a conditional offer of employment to the applicant, or to distribute information about an arrest not followed by conviction, referral to or participation in a pretrial or posttrial diversion program, or convictions that have been sealed, dismissed, expunged, or statutorily eradicated or any conviction for which the convicted person has received a full pardon or has been issued a certificate of rehabilitation while conducting a conviction history background check in connection with an application for employment, as specified.
This bill would define the term “conviction or arrest record,” for these purposes. The bill would include among those things that it is unlawful for an employer with 5 or more employees to do while conducting a conviction history background check in connection with an application for employment, asking any question that directly or indirectly seeks consent for a conviction history background check or requesting consent for or beginning a conviction history background check before providing the applicant with a list of all essential job duties, requiring a job applicant to cover the cost of a conviction history background check, or requiring any time before or after the conditional job offer, that an applicant self-disclose conviction history or provide the employer with any documentary evidence related to conviction history or rehabilitation, as specified.
Existing law requires an employer that intends to deny an applicant a position of employment solely or in part because of the applicant’s conviction history to 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 considering specified factors.
This bill, instead, would prohibit an employer from denying an applicant a position of employment or taking any other adverse action solely or in part because of the applicant’s conviction history unless the employer first, reasonably and in good faith, demonstrates via an individualized assessment, that the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justifies denying the applicant the position and it complies with a specified process. The bill would require the employer to commit the results of the individualized assessment to writing if it makes a decision to deny a position of employment or takes any adverse action. The bill would specify that it is not an adverse action for an employer to temporarily suspend an employee, with pay and for a reasonable amount of time, while the employer complies with the requirements of these provisions.
Existing law makes these provisions inapplicable to a position as a farm labor contractor, as specified or to a position where an employer or agent thereof is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history.
This bill would remove the exemption for farm labor contractors.

The people of the State of California do enact as follows:

SECTION 1.
Section 12952 of the Government Code is amended to read:
12952.
(a) Except as provided in subdivision (d), it is an unlawful employment practice for an employer with five or more employees to do any of the following:
(1) To include on any application for employment, before the employer makes a conditional offer of employment to the applicant, any question that directly or indirectly seeks the disclosure of an applicant’s conviction history or seeks consent for a conviction history background check.
(2) To inquire into, consider, or take any adverse action solely or in part because of the conviction history of the applicant until after the employer has made a conditional offer of employment to the applicant.
(3) To request consent for or begin a conviction history background check before providing the applicant with a list of all essential job duties. A list of all essential job duties may be conveyed by the employer through a job posting.
(4) To require a job applicant to cover the cost of a conviction history background check.
(5) To seek disclosure of, take any adverse action solely or in part because of, consider, distribute, or disseminate information about any of the following while conducting a conviction history background check in connection with any application for employment:
(A) Arrest not followed by conviction, except in the circumstances as permitted in paragraph (1) of subdivision (a) and subdivision (f) of Section 432.7 of the Labor Code.
(B) Referral to or participation in a pretrial or posttrial diversion program.
(C) Convictions that have been sealed, dismissed, or expunged, have received automated conviction record relief, or any court dispositions that occurred while the person was subject to the process or jurisdiction of the juvenile court, or have been statutorily eradicated pursuant to law, or any conviction for which the convicted person has received a full pardon or has been issued a certificate of rehabilitation.
(6) To require, at any time before or after the conditional job offer, that an applicant self-disclose conviction history or provide the employer with any documentary evidence related to conviction history or rehabilitation.
(7) To interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this section.
(b) This section shall not be construed to prevent an employer from conducting a conviction history background check not in conflict with the provisions of subdivision (a).
(c) (1) (A) An employer shall not deny an applicant a position of employment or take any adverse action solely or in part because of the applicant’s conviction history unless the employer first, reasonably and in good faith, demonstrates, via an individualized assessment, that the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justifies denying the applicant the position and complies with the process described in this subdivision.
(B) In making the individualized assessment, the employer shall consider all of the following:
(i) The nature and gravity of the offense or conduct.
(ii) The time that has passed since the offense or conduct and completion of the sentence.
(iii) The nature and specific duties of the job held or sought.
(C) The employer shall commit the results of this individualized assessment to writing if the employer makes a decision to deny a position of employment or takes any adverse action.
(2) If the employer makes a preliminary decision that the applicant’s conviction history disqualifies the applicant from the position, the employer shall notify the applicant of this preliminary decision in writing. The notification shall contain all of the following:
(A) Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer.
(B) A copy of the conviction history report, if any.
(C) An explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond. The explanation shall inform the applicant that the response may include submission of evidence challenging the accuracy of the conviction history report that is the basis for rescinding the offer, evidence of rehabilitation or mitigating circumstances, or both.
(D) An explanation of the employer’s reasoning for making the preliminary decision, including a copy of the results of the individualized assessment described in paragraph (1).
(3) The applicant shall have at least five business days to respond to the notice provided to the applicant under paragraph (2) before the employer may make a final decision. If, within the five business days, the applicant notifies the employer in writing that the applicant disputes the accuracy of the conviction history report that was the basis for the preliminary decision to rescind the offer and that the applicant is taking specific steps to obtain evidence supporting that assertion, then the applicant shall have 10 additional business days to respond to the notice.
(4) The employer shall consider all information submitted by the applicant pursuant to paragraph (3) and conduct a new individualized assessment pursuant to paragraph (1) before making a final decision.
(5) If an employer makes a final decision to deny an application or takes any adverse action solely or in part because of the applicant’s conviction history, the employer shall notify the applicant in writing of all the following:
(A) The final denial or disqualification.
(B) An explanation of the employer’s reasoning for the denial or disqualification, including a copy of the results of the updated individualized assessment described in paragraph (4).
(C) Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration.
(D) The right to file a complaint with the department.
(6) It shall not be considered an adverse action for an employer to temporarily suspend an employee, with pay and for a reasonable amount of time, while the employer complies with the requirements of this subdivision.
(d) This section does not apply in any of the following circumstances:
(1) To a position for which a state or local agency is otherwise required by law to conduct a conviction history background check.
(2) To a position with a criminal justice agency, as defined in Section 13101 of the Penal Code.
(3) To a position that an employer or agent thereof is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history. For purposes of this paragraph, federal law shall include rules or regulations promulgated by a self-regulatory organization, as defined in Section 3(a)(26) of the Securities Exchange Act of 1934 (15 U.S.C. Sec. 78c(a)(26)), as amended by 124 Stat. 1652 (Public Law 111-203), pursuant to the authority in Section 19(b) of the Securities Exchange Act of 1934 (15 U.S.C. Sec. 78s(b)), as amended by 124 Stat. 1652 (Public Law 111-203).
(e) The remedies under this section shall be in addition to and not in derogation of all other rights and remedies that an applicant may have under any other law, including any existing or future local ordinance that governs employer consideration of the arrest or conviction record of any job applicant or current employee.
(f) For purposes of this section:
(1) “Applicant” means an individual seeking initial work, continued work, transfer, or promotion.
(2) “Conditional job offer” means a written offer to work as an employee and includes offers for initial employment, transfer, or promotion.
(3) (A) “Conviction” has the same meaning as defined in paragraphs (1) and (3) of subdivision (a) of Section 432.7 of the Labor Code.
(B) Notwithstanding subparagraph (A), the term “conviction history” includes:
(i) An arrest not resulting in conviction only in the specific, limited circumstances described in subdivision (f) of Section 432.7 of the Labor Code, when an employer at a health facility, as defined in Section 1250 of the Health and Safety Code, may ask an applicant for certain positions about specified types of arrests.
(ii) An arrest for which an individual is out on bail or their own recognizance pending trial.
(4) “Conviction or arrest record” includes any record that the applicant was arrested, detained, charged, convicted, or referred to a pretrial or posttrial diversion program or any documented record of offenses in the state or federal criminal legal system, and includes records that have been sealed, pardoned, dismissed, expunged, statutorily eradicated, set aside, received automated criminal record relief, or otherwise resolved.
(g) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.