State Laws Restricting Use of Applicants Criminal Conviction Histories by Employers (as of May 2018)

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1 Please note that while the information contained herein is up-to-date and accurate to the best of our knowledge, CWC cannot guarantee that every applicable state or local law or applicable provision of state or local law has been identified and summarized. Accordingly, we recommend that you check the law of the particular state in which you have an interest to ensure compliance. CALIFORNIA It is an unlawful employment practice for an employer with five or more employees to: To inquire into or consider the conviction history of the applicant, including any inquiry about conviction history on any employment application, until after the employer has made a conditional offer of employment to the applicant. To consider, distribute, or disseminate information about any of the following while conducting a conviction history background check in connection with any application for employment: (A) Arrest not followed by conviction, (B) Referral to or participation in a pretrial or post-trial diversion program. (C) Convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law. 1

2 CALIFORNIA cont An employer that intends to deny an applicant a position of employment because of the applicant s conviction history shall make an individualized assessment of whether the applicant s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position. An employer may, but is not required to, commit the results of this individualized assessment to writing. If the employer makes a preliminary decision that the applicant s conviction history disqualifies the applicant from employment, the employer shall notify the applicant of this preliminary decision in writing. The applicant shall have at least five business days to respond to the notice provided to the applicant before the employer may make a final decision. The employer shall consider information submitted by the applicant before making a final decision. If an employer makes a final decision to deny an application because of the applicant s conviction history, the employer shall notify the applicant in writing of all the following: (A) The final denial or disqualification. The employer may, but is not required to, justify or explain the employer s reasoning for making the final denial or disqualification. (B) Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration. (C) The right to file a complaint with the department. This section does not apply, among other times, to a position where an employer or agent thereof is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history. Cal. Gov. Code 12952; Cal. Lab. Code Effective Date: January 1, 2018 CWC Memo:

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12 WASHINGTON An employer may not include any question on any application for employment, inquire either orally or in writing, receive information through a criminal history background check, or otherwise obtain information about an applicant's criminal record until after the employer initially determines that the applicant is otherwise qualified for the position. Once the employer has initially determined that the applicant is otherwise qualified, the employer may inquire into or obtain information about a criminal record. An employer may not advertise employment openings in a way that excludes people with criminal records from applying. Ads that state "no felons," "no criminal background," or otherwise convey similar messages are prohibited. An employer may not implement any policy or practice that automatically or categorically excludes individuals with a criminal record from consideration prior to an initial determination that the applicant is otherwise qualified for the position. Prohibited policies and practices include rejecting an applicant for failure to disclose a criminal record prior to initially determining the applicant is otherwise qualified for the position. This section does not apply to, among other things: Any employers hiring persons for positions that allow unsupervised access to children; Any employer, including a financial institution, who is expressly permitted or required under any federal or state law to inquire into, consider, or rely on information about an applicant's or employee's criminal record for employment purposes HB 1298 Effective Date: June 8, 2018 CWC Memo:

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