Cal-Peculiarities: How California Employment Law is Different 2022 Edition

©2022 Seyfarth Shaw LLP  www.seyfarth.com 2022 Cal-Peculiarities | 67 Plaintiffs’ lawyers exploited this provision to seek $26 million for 135,000 unsuccessful applicants who had unlawfully been asked if they had marijuana convictions. The trial court granted summary judgment to the plaintiffs, even though none of them actually had marijuana convictions to reveal. The Court of Appeal provided some adult supervision here, reversing the judgment while observing, “Plaintiffs’ strained efforts to use the marijuana reform legislation to recover millions of dollars from Starbucks gives a bizarre new dimension to the everyday expressions ‘Coffee Joint’ and ‘Coffee Pot.’ ” 11 A 2020 Court of Appeal decision reinstated a lawsuit alleging that an employee was fired because she had not disclosed on her job application a conviction for grand theft that had been judicially dismissed once she completed her probation. Although the employer did not know that the conviction had been judicially dismissed when it fired the employee, the employer did not rehire the employee once it learned of the judicial dismissal . 12 Asking applicants about convictions. California’s “ban the box” statute forbids private and public employers from asking about convictions on initial job applications . 13 About 30 states have similar legislation, in addition to 15 California cities and counties—including Los Angeles and San Francisco—that have enacted local legislation applying to private and public employers. California employers subject to the law generally may procure a background report or ask applicants about criminal convictions only after extending them a conditional offer of employment . 14 A nd California employers can rely on conviction history to deny employment only after making “an individualized assessment” of whether the conviction “has a direct and adverse relationship” with the job’s “specific duties … that justify denying the applicant the position.” That assessment must consider the nature and gravity of the offense, the time that has passed since completion of any sentence, and the nature of the job . 15 An employer so intending to deny employment must notify the applicant of its “preliminary decision” and provide a copy of the conviction history report, with notice of the applicant’s right to respond before the decision becomes fina l. 16 And an employer finalizing its preliminary decision must notify the applicant of rights to pursue the matter further . 17 E mployers can inquire about an applicant’s “particular conviction” under limited circumstances, mostly involving cases where a law requires consideration of criminal history . 18 4.2.2 San Francisco ordinance limiting inquiries into criminal history Under the “Fair Chance Ordinance” (designed to give rehabilitating ex-offenders a “fair chance” at employment), San Francisco employers of five or more employees must not ask job applicants about certain arrests or criminal convictions at all, and must not ask about other conviction history until after making a conditional offer of employmen t. 19 S an Francisco employers also must not inquire about or consider infractions, convictions that are more than seven years old (measured from date of sentencing), or any conviction for an offense that arises out of conduct that has since been decriminalized (measured from date of sentencing). Further, any criminal conviction, in order to disqualify a job candidate, must bear a “direct relationship” to the position the candidate is seeking. That is, the conviction must have a “direct and negative bearing on that person’s ability to perform duties or responsibilities necessarily related to the employment position.” The ordinance also imposes special notice, posting, and recordkeeping requirements on covered employers . 20 In 2018 San Francisco amended its Fair Chance Ordinance to align it, in some respects, with California’s ban-the- box law. For violations occurring after October 1, 2018, employers are subject to increased penalties for non- compliance: $500 for the first violation; $1,000 for the second violation; and $2,000 for further violations (under the initial Ordinance, the maximum penalty was $50). The amended Ordinance grants aggrieved individuals a right to file a civil action, if they file a complaint with the OLSE and exhaust their administrative remedies.