2018 Brings New Restrictions On Employers’ Inquiries Into Salary History And Conviction History

By Katy A. Suttorp

Last month, Governor Brown signed two pieces of legislation, both taking effect on January 1, 2018, which involve changes to the types of information employers may seek from applicants and when (or if) that information may be considered in the hiring process.  We offer a brief overview of both bills.

APPLICANTS’ CONVICTION HISTORY (AB 1008)

As of January 1, 2018, employers (both public[1] and private) with 5 or more employees must comply with several new restrictions regarding an applicant’s conviction history when hiring; however, the law contains a number of exclusions that will limit the law’s applicability to criminal justice employers.  These exclusions include:

  • Positions in criminal justice agencies (as defined in Section 13101 of the California Penal Code); [2] and
  • Any position for which an employer, or agent of 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 conviction history.

For positions that are affected by the new law, employers need to be aware that until an applicant receives a conditional offer of employment,[3] the employer cannot:

  • Include on any application a question that seeks disclosure of the applicant’s conviction history;
  • Inquire orally or in writing about the applicant’s conviction history; or
  • Consider any information obtained in any manner about an applicant’s conviction history.

Further, if the employer obtains conviction history for an applicant following issuance of a conditional offer of employment, the employer cannot deny employment because of the conviction history unless it first follows a series of specific, detailed procedural steps, culminating in notice that the applicant has a right to file a complaint with the California Department of Fair Employment and Housing.

APPLICANTS’ PRIOR COMPENSATION AND BENEFITS  (AB 168)

AB 168 adds Section 432.3 to the Labor Code, to limit employers’ lawful consideration of applicant’s salary history information (including compensation and benefits).  These requirements will apply regardless of an employer’s size.  The new law does recognize that some salary history for applicants is available under laws such as the California Public Records Act and the federal Freedom of Information Act and permits that information to be considered.  In addition, the law permits applicants to provide prior salary history information, as long as that choice is truly voluntary and not prompted.

Otherwise, employers are prohibited from requesting or relying on applicants’ salary history in deciding whether to hire them (and the salary to offer) and cannot use third parties to avoid these restrictions.  Employers must also provide the pay scale for a position upon an applicant’s reasonable request.

[1] The new law repeals in their entirety the current “ban-the-box” provisions in Labor Code Section 432.8.

[2] Section 13101 defines “criminal justice agencies” as “those agencies at all levels of government which perform as their principal function, activities which either: (a) relate to the apprehension, prosecution, adjudication, incarceration, or correction of criminal offenders; or (b) relate to the collection, storage, dissemination, or usage of criminal offender record information.”  Section 13101 is part of the statutory provisions governing direct access to criminal history records (as opposed to requesting such information through the Department of Justice.)

[3] The requirement that the employer refrain from requesting conviction history information until after issuance of a conditional offer of employment is the same standard that currently applies under the California Fair Employment and Housing Act (“FEHA”) and the federal Americans with Disabilities Act to employer requests for medical examinations, which requires that such a request be the last step in a hiring process.

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