California AB 1008 Fair Chance Act

Additional Legislation to reduce barriersto employment for people with criminal conviction histories

California AB 1008: California has joined many other states in enacting additional legislation to reduce barriers to employment for people with criminal conviction histories. AB 1008, approved by Governor Brown on October 14, 2017, effective January 1, 2018, adds a section to the Fair Employment and Housing Act applying to employers with five or more employees.

In summary, it is unlawful for these employers to inquire into, consider, distribute or disseminate information related to arrests not followed by conviction or convictions which lead to referral to or participation in a pretrial or post-trial diversion program or that have been sealed, dismissed, expunged or statutorily eradicated pursuant to law. Additionally, an employer who intends to deny a position of employment solely or in part because of the applicant’s conviction history must “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. In making the assessment described in this paragraph, 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 of the job held or sought.”

If, after the individualized assessment, the employer makes a preliminary decision to deny employment, the employer must notify the applicant of this preliminary decision in writing. This notification must include the disqualifying conviction(s) that are the basis for the preliminary decision, a copy of the conviction history report, an explanation of the applicant’s right to respond to the employer’s preliminary decision before that decision becomes final along with the deadline in which to respond. The explanation must inform the applicant that the response may include evidence challenging the accuracy of the conviction report and/or of rehabilitation or mitigating circumstances. If the applicant disputes the information that lead to the preliminary decision and is taking steps to obtain supporting evidence of that, the applicant must be provided an additional five business days to respond to the notice. The employer must consider the information submitted before making a final decision to rescind the offer of employment. If the final decision is to rescind the offer of employment, the employer must notify the applicant in writing and include any existing procedure the employer has for the applicant to challenge the decision or request reconsideration and the applicant’s right to file a complaint with the department. AB 1008 can be viewed at https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB1008