California Lawmakers Consider Changes to Background Checks

A new bill in the California legislature would make changes to the state’s Fair Chance Act, imposing additional requirements on how employers with five or more employees conduct their hiring process.

Assembly Bill 2095 would expand pre-offer restrictions by prohibiting employers from including any question that directly or indirectly seeks disclosure of conviction history or consent for a background check on any employment application and broaden the definition of “applicant” to include individuals “seeking…continued work.”

Employers would also be required to provide a list of specific job duties with which a conviction may have a direct and adverse relationship before requesting consent for or initiating a background check. The proposed bill would establish a rebuttable presumption that the conviction to job relationship does not justify denial if the applicant has completed the sentence or holds a requiring government-issued credential.

Pursuant to AB 2095, employers would be prohibited from requiring applicants to cover the cost of background checks, self-disclose conviction history or provide documentary evidence of conviction history or rehabilitation at any time.

Currently, employers considering taking post-offer adverse action based on an applicant’s conviction history must conduct an assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job, considering a list of factors delineated in the regulations.

Once this assessment is complete, existing law mandates that an employer provide a written notice to the applicant of the potential adverse action (known as the pre-adverse action letter) and allow for five business days for a response from the applicant with additional information (such as mitigating circumstances or evidence of rehabilitation). A final adverse action letter must be sent if an employer decides to revoke the conditional offer based on criminal history information.

AB 2095 would add to the requirements by requiring employers to document their assessments in writing and provide them to applicants, demonstrating that the assessment was made reasonably and in good faith. The time period for an applicant’s response would be doubled to ten days if the applicant disputes the report.

Another new feature of the proposed legislation: an explicit anti-retaliation provision.

To read AB 2095, click .

Why it matters: California employers should keep an eye on the legislation, as it would add to the requirements already mandated by the Fair Chance Act.