New CA Law Regarding Pre-Adverse Action Letters

pre-adverse action lettersWhen an employer plans to take adverse action based on information provided in a background check, they must engage in the pre-adverse action process. This means that the employer must send a copy of the background screening report and FCRA “Summary of Rights” to the applicant, allow them ample time to review the report, and identify any inaccuracies or errors.

Additionally, pre-adverse action letters generally accompany the report and summary of rights that states that adverse information has been reported; therefore, their employment may potentially be jeopardized. Pre-adverse action letters are not required by the FCRA.

With the implementation of California Government Code 12952 on January 1, 2018, employers must now provide specific information on pre-adverse action letters. The employer must provide detailed written notification regarding potential adverse action that includes the following items:

  • Notification that the employer has made a “preliminary decision that the applicant’s conviction history disqualifies the applicant from employment”
  • Notification of each adverse action item reported that could potentially disqualify the applicant from employment
  • Copy of the conviction history report, if present (no other components of the background check should be included)

The applicant does have an opportunity to respond to the employer’s preliminary decision before the employer’s decision is final. The applicant must also be provided with a deadline by when they must respond. The notification to the applicant must include the submission of evidence disputing the accuracy of the conviction reported that is the foundation for withdrawing the offer, proof of rehabilitation or mitigating conditions, or both.

The law contains explicit limitations on when an employer can utilize criminal convictions in the employment process, limitations on the type of information an employer can use, and restrictions on the way an employer may use such information. The statute also includes specific requirements for the adverse action letter (as opposed to the pre-adverse action letter) that goes above and beyond what the FCRA requires.

Employers should confirm with their third-party background screening vendor that they are adhering to California Government Code 12952. In the end, it is the employer’s responsibility to make the hiring decision based on the results from the background screening report. Once the decision has been made, the employer may engage their background screening company to help navigate through the pre-adverse and/or adverse action process.

California Government Code 12952 is part of the new California AB 1008 (CA Fair Chance Act), which states that employers with five or more employees may not inquire about past criminal convictions until after a conditional job offer has been extended. Furthermore, the law prohibits employers from utilizing the following criminal charges:

  • Arrest or detention that did not result in conviction
  • Referral to or participation in a pre-trial or post-trial diversion program
  • Conviction that has been judicially dismissed or ordered sealed, expunged, or statutorily eradicated pursuant to law
  • Arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while a person was subject to the process and jurisdiction of a juvenile court law
  • Certain (emphasis added) marijuana infractions and misdemeanor convictions that are older than two years