Existing California law prohibits public employers (e.g., the State of California, cities, government agencies, public universities) from asking an applicant to disclose his/her prior conviction history until the applicant receives a qualified offer of employment. This law is referred to as “ban the box” because it prohibits employers from asking if the applicant has ever been convicted of a crime — and then requiring the applicant to “check a box” as to “yes” or “no.” Currently, 29 states and over 150 cities have “ban the box” laws.
“Ban the Box” Comes to Private Employers in California
On October 14, 2017, California Governor Jerry Brown signed AB 1008 which extends California’s “ban the box” law to private employers with 5 or more employees. When AB 1008 becomes effective on January 1, 2018, it will be illegal for a California employer with 5 or more employees:
— To include on an employment application a question asking the applicant to disclose his/her prior conviction history;
— To consider an applicant’s prior conviction history before making that applicant a conditional offer of employment; and
— To consider, distribute, or disseminate any of the following information while conducting a criminal history background check in connection with an offer of employment: (a) an arrest that did not result in a conviction, subject to the exceptions set forth in California Labor Code Section 432.7; (b) referral to or participation in any pre-trial or post-trial diversion program; and/or (c) a conviction that has been sealed, dismissed, expunged, or otherwise eliminated by operation of law.
Requirement of “Individualized Assessment”
Under AB 1008, if an employer makes a conditional offer of employment to an applicant and then proceeds to conduct a criminal background check, the employer cannot then rescind that offer solely or in part because of the applicant’s criminal history unless the employer first performs an individualized assessment. This assessment must explain any decision to reject the applicant’s employment by linking the applicant’s conviction history with specific job duties. In particular, this assessment must consider the nature and gravity of the criminal offense, the time that has passed since the offense and the completion of the sentence, and the nature and duties of the job being sought.
Adverse Action After the “Individualized Assessment”
Under AB 1008, if the employer’s individualized assessment concludes that the applicant is disqualified from employment, then the employer must:
— Provide written notice to the applicant of the disqualifying conviction(s) that is/are the basis for the preliminary decision to rescind the offer;
— Include a copy of the conviction history report, if any, in the written notice to the applicant; and
— Explain in writing that the applicant has the right to respond to the notice within at least five business days, and that the applicant’s response may include submission of evidence challenging the accuracy of the conviction record and/or evidence of rehabilitation or mitigating circumstances.
If the applicant submits additional information to the employer, the employer must consider that information before making a final determination.
The Employer’s Final Decision
Under AB 1008, if the employer makes a final determination to deny employment to the applicant based solely or in part on the applicant’s conviction history, the employer must provide a second written notification to the application which must:
— State the final denial or disqualification;
— Explain the procedure offered by the employer to challenge the decision or request reconsideration, if such a procedure exists; and
— State that the applicant has the right to file a complaint with the Department of Fair Employment and Housing (DFEH).
Interaction with Local Ordinances
AB 1008 sets forth a new statewide “ban the box” law. It does not, however, repeal or change the various local “ban the box” ordinances that many California cities and counties have adopted. Therefore, if you are an employer operating in any of these local jurisdictions — which include Alameda County, Santa Clara County, the City & County of San Francisco, and the cities of Berkeley, Carson, Compton, East Palo Alto, Los Angeles, Oakland, Pasadena, and Richmond — then AB 1008 will bring yet another layer of “ban the box” rules that you need to comply with.
What California Employers Should Do Now
California employers who utilize criminal background information as part of their hiring process should consult with experienced employment counsel to discuss whether and how AB 1008 will impact their hiring process and procedures. In addition, California employers should determine whether they need to revise job applications, interview guidelines, and/or adverse action letters as a result of AB 1008’s requirements.
You can read the full text of AB 1008 here.