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(a) Regarding applicants or potential applicants for employment, or employees, a Contractor or Subcontractor shall not, at any time or by any means, inquire about, require disclosure of, or if such information is received base an Adverse Action in whole or in part on:
(1) An Arrest not leading to a Conviction, excepting under circumstances identified in this Section an Unresolved Arrest;
(2) Participation in or completion of a diversion or a deferral of judgment program;
(3) A Conviction that has been judicially dismissed, expunged, voided, invalidated, or otherwise rendered inoperative, by way of example but not limitation, under California Penal Code Sections 1203.4, 1203.4a, or 1203.41;
(4) A Conviction or any other determination or adjudication in the juvenile justice system, or information regarding a matter considered in or processed through the juvenile justice system;
(5) A Conviction that is more than seven years old, the date of Conviction being the date of sentencing;
(6) Information pertaining to an offense other than a felony or misdemeanor, such as an infraction, except that a Contractor or Subcontractor may inquire about, require disclosure of, base an Adverse Action on, or otherwise consider an infraction or infractions contained in an applicant or employee’s driving record if driving is more than a de minimis element of the employment in question; or
(7) A Conviction that arises out of conduct that has been decriminalized since the date of the Conviction, the date of the Conviction being the date of sentencing. Examples of statutes that have decriminalized particular conduct include but are not limited to California Health and Safety Code Sections 11362.1 and 11362.2.
Accordingly, the matters identified in this subsection (a) may not be considered in any manner by the Contractor or Subcontractor.
(b) A Contractor or Subcontractor shall not require applicants or potential applicants for employment or employees to disclose on any employment application the fact or details of any Conviction History, any Unresolved Arrest, or any matter identified in subsections (a)(1)-(7). Nor shall the Contractor or Subcontractor inquire on any employment application about the fact or details of any Conviction History, any Unresolved Arrest, or any matter identified in subsections (a)(1)-(7). A Contractor or Subcontractor may ask on an employment application for an applicant, potential applicant, or employee’s written consent for a Background Check so long as the application includes a clear and conspicuous statement that the Contractor or Subcontractor will not itself conduct or obtain from a third party the Background Check until after a conditional offer of employment in accordance with subsection (c) of this Section 12T.4.
(c) A Contractor or Subcontractor shall not require applicants or potential applicants for employment, or employees, to disclose, and shall not inquire into or discuss, their Conviction History or an Unresolved Arrest until after a conditional offer of employment. A Contractor or Subcontractor may not itself conduct or obtain from a third party a Background Check until after a conditional offer of employment.
(d) Prior to any Conviction History inquiry, the Contractor or Subcontractor shall provide a copy of the notice described in Section 12T.5(b) to the applicant or employee.
(e) Prior to obtaining a copy of a Background Check Report, the Contractor or Subcontractor shall comply with all state and federal requirements including but not limited to California Investigative Consumer Reporting Agencies Act (ICRAA), California Civil Code sections 1786 et seq., and the Federal Consumer Reporting Act (FCRA), 15 United States Code sections 1681 et seq., to provide notice to the applicant or employee that such a report is being sought.
(f) In making an employment decision based on an applicant's or employee's Conviction History, a Contractor or Subcontractor shall conduct an individualized assessment, considering only Directly-Related Convictions, the time that has elapsed since the Conviction or Unresolved Arrest, and any evidence of inaccuracy or Evidence of Rehabilitation or Other Mitigating Factors.
(g) If a Contractor or Subcontractor intends to base an Adverse Action on an item or items in the applicant or employee's Conviction History, prior to taking any Adverse Action the Contractor or Subcontractor shall provide the applicant or employee with a copy of the Background Check Report, and shall notify the applicant or employee of the prospective Adverse Action and the item or items forming the basis for the prospective Adverse Action.
(h) If, within seven days of the date that the notice described in subsection (g) is provided by the Contractor or Subcontractor to the applicant or employee, the applicant or employee gives the Contractor or Subcontractor notice, orally or in writing, of evidence of the inaccuracy of the item or items of Conviction History or any Evidence of Rehabilitation or Other Mitigating Factors, the Contractor or Subcontractor shall delay any Adverse Action for a reasonable period after receipt of the information and during that time shall reconsider the prospective Adverse Action in light of the information.
(i) Upon taking any final Adverse Action based upon the Conviction History of an applicant or employee, a Contractor or Subcontractor shall notify the applicant or employee of the final Adverse Action.
(j) A Contractor or Subcontractor shall not engage in any communication that is intended and reasonably likely to reach persons who are reasonably likely to seek employment to be performed under a Contract or Property Contract and that expresses, directly or indirectly, that any person with an Arrest or Conviction will not be considered for employment or may not apply for employment. For purposes of this subsection (j), engaging in a communication includes but is not limited to making a verbal statement or producing or disseminating any solicitation, advertisement, or signage.
(k) Nothing in this Section 12T.4 shall be construed to prohibit a Contractor or Subcontractor from observing the conditions of a seniority system or an employee benefit plan, provided such systems or plans are not a subterfuge to evade the purposes or requirements of this Chapter.
(Former Sec. 12T.4 added by Ord. 3-02, File No. 011796, App. 1/18/2002; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)