Every January 1, a number of new employment laws take effect in California and this year is no exception. However, two new laws that took effect on January 1, 2018 will directly impact the application and hiring practices of California employers.
Salary History Inquiries [AB 168; Ch. 688; Eggman]
New Labor Code §432.3 now restricts a prospective employer’s ability to inquire about or rely on the salary history of an applicant for employment. Specifically:
Ban-the-Box Law [AB 1008; Ch. 789; McCarty]
With limited exceptions, new Government Code §12952 amends the Fair Employment and Housing Act (FEHA) to make it unlawful for any public or private employer with five or more employees to do any of the following:
1. Include any question on a job application seeking an applicant’s conviction history before the employer makes a conditional offer of employment;
2. Inquire into or consider an applicant’s conviction history until after the prospective employer makes a conditional offer of employment;
3. Consider, distribute, or disseminate information about any of the following while conducting the background check in connection with an application for employment:
If an employer intends to deny employment to an applicant solely or partially because of his or her conviction history, the employer must make an individualized assessment of whether the conviction history has a direct and adverse relationship with the specific duties of the job that justify refusing to hire the applicant. The assessment must consider:
If an employer makes a preliminary decision not to hire the applicant based on conviction history, it must notify the applicant in writing, which notice shall contain all of the following:
The applicant must have at least five business days to respond before the employer makes a final decision. If the applicant notifies the employer in writing during that time that he or she disputes the accuracy of the conviction history report and is taking specific steps to obtain evidence supporting same, then the applicant shall have five additional business days to respond. The employer must consider any information submitted by the applicant before making a final decision.
If an employer makes a final decision to deny employment solely or partially because of his or her conviction history, it must notify the applicant in writing of all the following:
Among other exceptions, the prohibition does not apply to a position where an employer 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. Credit unions are encouraged to consult with counsel to determine the extent to which this exemption might apply and how to ensure hiring procedures are compliant.