The California legislature has approved a bill that would dramatically expand protections for people with a criminal record under the state’s Fair Employment and Housing Act (FEHA). AB 1008 provides that non-conviction records may not be considered at all in any employment decision by a covered employer (one with more than five employees), and makes violation of this an unfair employment practice under FEHA. Non-conviction records include records of convictions that have been dismissed pursuant to California’s set-aside law, and convictions that have been sealed or expunged.
The new law makes it an unfair employment practice to ask about an applicant’s conviction record before a conditional offer of employment, and requires an employer who intends to deny employment solely or in part because of the applicant’s conviction history to make an individualized assessment of whether this has “a direct and adverse relationship with the specific duties of the job.” In making that individualized assessment, the employer must take into account (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; and (iii)The nature of the job held or sought.
The bill still has to be signed by Governor Brown, but when that happens California will become the fourth state in the country, after New York, Wisconsin, and Hawaii, to extend the full protections of its fair employment law to individuals with a criminal record.