California is well-known for innovative laws regarding individual rights. As background checks have become increasingly important for employment and housing, California has moved to regulate them. Although California laws are stricter than most states, they have often served as a template for others to follow. A few of the bills being considered could have dramatic effects if they should pass. In this blog post, we will delve into some of the proposed and recently passed background check bills in California that impact employee and tenant screening.
Senate Bill 809: Fair Chance Act of 2023 – Limiting Employers’ Access to Applicants’ Conviction Histories
Senate Bill 809, also known as the Fair Chance Act of 2023, is an extension of the Fair Chance Act passed in 2018. It seeks to restrict most private employers from using a job applicant’s conviction history in their hiring decisions. The 2018 act provided a version of ban the box, in which criminal history could not be considered until after a conditional offer of employment. But the unemployment rate for formerly incarcerated individuals is still very high — claimed to be 60% — and the new bill aims to fix that.
Under the bill, employers would only be permitted to request a conviction history report if:
- federal or state law mandates it, or
- the conviction history is directly and adversely related to the specific job duties.
Employers would also need to conduct an individualized assessment of the applicant’s conviction history and provide a written statement explaining the reasons for denial based on their conviction history. Other provisions include record-keeping requirements for employers, and new enforcement mechanisms such as civil penalties and training requirements.
The highly restrictive nature of this bill would make most background checks for employment illegal in California. If you have comments on it, you may wish to contact your representative, or consider attending one of the upcoming hearings, with the next one listed as of this writing on April 18, 2023.
Assembly Bill 2383: Proposed Bill on Landlords Requesting Criminal Records
Assembly Bill 2383, another proposed bill that has not yet been passed, would make it a discriminatory housing practice for landlords to inquire about or require applicants to disclose their criminal records during the initial application phase. Under this bill, landlords would be permitted to request a criminal background check only after the applicant has passed the initial assessment based on other criteria, such as income, credit score, and rental history. Landlords would also be required to provide applicants with a written statement of the reasons for denial based on their criminal record, allow the candidate a specified number of days to contest the accuracy of the background check, and reconsider their decision if the applicant provides evidence of rehabilitation or inaccuracies in the record. The bill would also prohibit landlords from using certain types of information or occurrences in their decision, such as arrests that did not result in conviction, voided convictions, and juvenile justice determinations. Landlords would also need to provide notice to applicants before requesting a criminal background check.
This bill is far less radical than the Fair Chance Act of 2023; these provisions are similar to ones that employers already follow in most states. Many landlords may be new to these rules, and will need to adjust policies accordingly.
In addition to these proposed bills, there have some laws recently passed that will affect background checks in California:
Criminal Record Relief
Signed into law in September of 2022, this bill received comparatively little attention despite its impact. Senate Bill 731 will seal a large number of criminal records, beginning in July 2023. It has some similarities to the automatic expungements recently implemented in Michigan. There are quite a few provisions here, but the most important is this:
Under existing law, a person is eligible for automatic conviction record relief if, on or after January 1, 1973, they were sentenced to probation, and completed it without revocation, or if they were convicted of an infraction or a misdemeanor, and other criteria are met, as specified.
The bill, commencing July 1, 2023, would additionally make this conviction record relief available for a defendant convicted, on or after January 1, 2005, of a felony for which they did not complete probation without revocation if the defendant appears to have completed all terms of incarceration, probation, mandatory supervision, postrelease community supervision, and parole, and a period of 4 years has elapsed during which the defendant was not convicted of a new felony offense, except as specified. The bill would specify that conviction record relief does not release the defendant from the terms and conditions of unexpired criminal protective orders.
…The bill would prohibit disclosure of information relating to a conviction for possession of specified controlled substances when the conviction is more than 5 years old and when relief has been granted under these provisions.
https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB731
The conviction relief is coupled with an automatic monthly cleansing of state databases of criminal records that meet these criteria. Effectively, this means that employers and landlords will not be able to make use of those records. Sex offenders are not eligible for conviction record relief, nor are (most) of those previously incarcerated in a state prison. But notably, this bill does not make any specific exception for violent offenders.
Reusable Credit Reports for Renters
Passed by the California Assembly, Assembly Bill 2559 enables renters to obtain reusable credit reports to submit to multiple potential landlords. This bill aims to help renters avoid paying redundant fees for credit checks while searching for an apartment or home. Additionally, credit reporting agencies would be required to provide renters with a copy of their credit report upon request and notify renters of any adverse action taken by a landlord based on their credit report. This bill seeks to reduce the growing cost of applying for housing while protecting renters’ rights.
The impact of this law should be minor, as long as landlords are aware of the rules and allow the duplicate credit report to be presented.
California continues to present some unique challenges, and it is particularly important to use an experienced background check vendor in this state.
(Please note, we did not cover Senate Bill 1262, a highly significant bill that was vetoed by Governor Gavin Newsom. It would have restored the ability to complete California background checks more quickly and accurately by restoring access to identifiers used by background screening agencies that were recently removed in this state. We will discuss it in a separate post.)