Disclaimer: The following article is provided for informational and educational purposes only and does not constitute legal advice. The legislative landscape is rapidly evolving, and the application of these laws depends on the specific facts of each business. Employers should consult with qualified legal counsel before making any policy changes or employment decisions based on this information.
Current Status Assembly Bill 2095 is currently pending in the Assembly Labor and Employment Committee and the Judiciary Committee. Introduced as the “Fair Chance Improvement Act,” it seeks to close perceived loopholes in existing “ban the box” legislation and has strong backing from progressive labor advocates.
Employment Litigator Comments
Defense attorneys warn that AB 2095 forces employers into an impossible Catch-22: hire applicants with serious criminal backgrounds and risk negligent hiring and workplace violence lawsuits, or deny them and face Civil Rights Department (CRD) discrimination audits. Litigators are particularly concerned that the bill requires employers to share their internal written assessments with the applicant, which will undoubtedly be weaponized by plaintiffs’ attorneys in discovery to prove pretextual hiring denials.
Business Community Comments
The business community expresses intense frustration with the administrative burdens imposed by AB 2095. For businesses in mass-hiring sectors like retail, logistics, and hospitality, the requirement to produce a customized, written legal assessment for every single applicant with a criminal record creates an immense, costly bottleneck in the onboarding process. Employers argue this effectively strips them of their discretion to maintain safe work environments and protect company assets.
Nuts and Bolts of the Requirements AB 2095 tightens the existing Fair Chance Act by legally requiring employers to document their individualized assessment in writing when denying employment based on a criminal conviction, and mandates that this written assessment be shared with the applicant. The employer must affirmatively prove that the specific conviction history has a “direct and adverse” impact on the specific duties of the desired job. Furthermore, the bill narrows broad exemptions that previously excluded large categories of jobs from these protections and prohibits employers from requiring applicants to pay for their own background checks.
Compliance Guidance
Talent acquisition and HR teams must standardize a strict, objective rubric for evaluating criminal backgrounds that strips out subjective bias. Blanket bans on hiring individuals with certain felonies must be completely abandoned. Recruiting personnel must be trained on how to properly draft the required written assessments to ensure they clearly articulate the nexus between the applicant’s specific crime and the daily tasks of the role.
Why You Need to Work With a Business Attorney Because of This Bill
If this bill is enacted, you must retain a business attorney to overhaul your hiring and background check protocols. Counsel can help prepare your business by drafting legally bulletproof templates for the “direct and adverse” conviction analyses. An attorney’s guidance is critical to ensure that your written justifications are objective and legally sound, thereby insulating the company from CRD enforcement actions while still protecting your business from negligent hiring liability.