California just wrapped another busy legislative year passing more than a dozen new laws that will affect workers and employers. Today’s blog looks at two of these laws, both of which are aimed at removing barriers to employment – AB 1008 concerning an applicant’s criminal history and AB 168 concerning an applicant’s salary history.
Overcoming the Obstacles of a Criminal History
Individuals with criminal records unquestionably have a more difficult time obtaining employment than individuals without criminal records. It is also well established that gainful employment improves the lives of these individuals and their families and ultimately benefits society as a whole. Consequently, many states and localities place restrictions on an employer’s ability to use an applicant’s or employee’s criminal record in making employment decisions. These are generally referred to as “ban-the-box” laws.
Current Criminal History Protections
California law already limits the use of criminal records in making employment decisions. For instance, Labor Code 432.7 prohibits employers, whether a public agency or a private employer, from seeking out or factoring into employment decisions: (1) arrests not resulting in a conviction, (2) diversions, (3) convictions that have been judicially dismissed or sealed, and (4) juvenile court records. Labor Code 432.9 prohibits state and local agencies from asking an applicant to disclose a conviction history until the agency has determined the applicant meets the minimum qualifications for the position. Fair Employment and Housing Act (FEHA) regulations prohibit employers from utilizing criminal history information in making employment decisions if doing so would have an adverse impact on a protected class, such as race, gender or national origin, unless the practice is job-related and consistent with business necessity.
Expansion of Criminal History Ban (AB 1008)
This January, California law will place additional restrictions on the use of criminal records in pre-hire decision-making. AB 1008 amends the FEHA to prohibit any employer with five or more employees from:
- including on a job application any question that seeks the disclosure of the applicant’s conviction history,
- asking about an applicant’s conviction history until after a conditional offer has been made, and,
- when conducting a conviction background check, from considering an arrest not followed by a conviction, diversion, and a conviction that has been sealed, dismissed, expunged or statutorily eradicated.
Under the new law, before an employer may deny an applicant employment because of the applicant’s conviction history, the employer must conduct an individual assessment of whether the conviction has a direct and adverse relationship to the specific duties of the job. The individual assessment must take into account:
- the nature and gravity of the offense,
- the time that has passed since the offence and completion of the sentence, and
- the nature of the job held or sought
If an employer makes a preliminary determination that the applicant’s conviction history disqualifies the applicant, the employer must notify the applicant of the preliminary determination and provide the applicant five days to respond. If, after considering the applicant’s response, an employer makes a final decision to deny employment, the employer must notify the applicant of the final decision and the applicant’s rights going forward, including the ability to appeal the decision or file a complaint.
Salary History Information (AB 168)
Like a criminal conviction, an individual’s pay history can impede the individual’s ability to obtain a job or earn a competitive wage rate. This is particularly true of women and minorities who historically have been underpaid relative to other groups. Salary history can also work against workers who are new to or reentering the workforce after an absence. In recent years, California has made several advances in promoting fair pay and wage transparency.
Effective January 1, 2018, California again takes aim at eliminating the gender wage gap and other wage inequalities by prohibiting all employers, public and private, from:
- asking either orally or in writing for an applicant’s salary history information, or
- relying on an applicant’s salary history information in determining whether to offer an applicant employment or what salary to offer an applicant.
The law also requires an employer to provide, upon reasonable request, the pay scale for the position. The law does not prohibit an applicant for voluntarily disclosing salary history or prohibit the employer from relying on voluntarily disclosed pay information in determining the salary to offer an applicant.
Recommendations
Employers should review printed job application forms and review hiring practices to ensure that prohibited information is not being solicited from job applicants. In addition to developing a pay scale for positions, employers should be able to explain differences in compensation among employees within the applicable salary or wage range based on factors such as experience, tenure, past performance, or other objective criteria. Well-developed hiring guidelines, position profiles and pay criteria can prevent decision-makers from making inappropriate assumptions about an applicant when determining whether or not to extend an employment offer and deciding how much to pay.