State Legislation: AB 1008 (McCarty): Employment discrimination: prior criminal history

State Legislation: AB 1008 (McCarty): Employment discrimination: prior criminal history

AB 1008 prohibits an employer from disqualifying an applicant on the basis of a felony conviction less than seven years old if the applicant provides any of the following items of “mitigation”:

  1. The applicant has not been convicted within a year after being released from a correctional institution.
  2. The applicant is in compliance with the terms of probation
  3. Any other evidence that mitigates the conviction, including a letter of reference.

Under this mandate, an amusement park, private health care facilities, transit drivers, etc., all who have positions with access to vulnerable populations such as children and the elderly, would not be allowed to inquire into whether an applicant had any felony convictions for sexual assault or abuse of minors, if an individual was convicted more than seven years ago.

Given the vulnerability of some positions with regard to the individuals with whom the employee will interact, the sensitive data/products for which the employee may have access, an employer should be allowed to consider relevant felony convictions to properly assess the potential risks even if those convictions occurred more than seven years ago.  Additionally, this provision fails to incorporate existing law that currently allows certain industries to consider certain arrests given employee access to vulnerable individuals/patients and drugs and medications.

Finally, if the employer decides to hire an individual despite the individual’s criminal conviction and the applicant commits a crime against another employee or member of the public, there is nothing under AB1008 that protects the employer from the risk of liability for negligent hiring and retention. 


STATUS: Third reading in Senate Appropriations