Beginning Jan. 1, California employers will no longer be able to ask applicants about prior salary or criminal conviction history.
These changes are part of a national trend to limit the use of salary and conviction history in employment, which proponents argue tend to perpetuate discriminatory employment practices. Localities like San Francisco and Los Angeles enacted similar laws in recent years. Now, these restrictions will apply to employers statewide.
Here’s a closer look at the two laws:
Salary history – AB 168 makes it unlawful to ask applicants about prior compensation or benefits, directly or indirectly. However, applicants may disclose the information voluntarily. Employers must also provide a pay scale for a position upon an applicant’s reasonable request. The law states “[a]n employer shall not rely on the salary history information of an applicant for employment as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant.” Similarly, under the Fair Pay Act, prior salary cannot justify a disparity in pay between employees of different genders, races, or ethnicities.
Criminal conviction history – AB 1008, the “Ban the Box” law, says employers with five or more employees cannot ask about applicants’ criminal conviction history on employment applications, or inquire into or consider applicants’ conviction histories before a conditional offer of employment is made. That information can be sought after a conditional offer is made, but the law imposes further restrictions on the use of that information.
Employers who intend to deny an applicant a position “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.” The law outlines specific topics that must be considered during an assessment, such as the nature and gravity of the offense, the time passed since conviction and the nature of the job.
Employers who intend to rescind the job offer after conducting an assessment must provide the applicant written notification that a conviction disqualified him/her from the job. The notice must include the disqualifying conviction(s), a copy of the conviction history (if any) and information regarding the applicant’s right to respond with evidence challenging the accuracy of the report. Employers must consider any evidence provided by the applicant. If the employer again decides to deny employment, a notice of final decision must be given to the applicant.
Employers should be mindful of other existing laws that limit or prohibit considering certain convictions or arrests that did not result in a conviction in employment decisions. Also, employers who intend to run background checks through outside background check companies must comply with the Fair Credit Reporting Act. Among other things, employers must tell applicants or employees that the information may be used for decisions relating to employment.
Best practices for employers
Employers should review their employment applications and remove any questions about prior salary or criminal history. Also, revise interview questions to avoid asking applicants improper questions. Background check procedures, whether internal or with third-party providers, should be updated to delay criminal history inquiries until after a conditional employment offer is extended. Employers should develop procedures and forms to comply with the assessment and notice requirements of the Ban the Box law. Finally, employers should train people involved in the hiring process about these new restrictions and requirements to ensure the laws are followed correctly.
Brett Sutton is an attorney and partner of Sutton Hague Law Corporation with offices in California (including Fresno) and Nevada. The focus of the firm’s practices is labor and employment law.
New California legislation and cases, including laws curtailing what employers can ask job-seekers, will be discussed during the Sutton Hague Law Corporation’s “New Year Employment Law Update for California Employers” webinar
When: Dec. 7
Details: For more information and registration, www.suttonhague.com/events