California’s Ban the Box Law: What Employers Need to Know
Governor Jerry Brown signed Assembly Bill 1008 into law on October 14, 2017, expanding a section of the California Fair Employment and Housing Act (FEHA) to restrict employers’ ability to make pre-hire and employment decisions based on an individual’s criminal history. California’s Ban the Box law is effective January 1, 2018.
AB 1008 applies to all employers in California with five or more employees and restricts affected employers from:
- Including on any application for employment any question that seeks the disclosure of an applicant’s conviction history;
- Inquiring into or considering the conviction history of an applicant before the applicant receives a conditional offer of employment; and
- Considering distributing, or disseminating information about any of the following while conducting a criminal history background check in connection with any application for employment:
- (1) an arrest that did not result in a conviction, subject to the exceptions in Labor Code § 432.7(a)(1) and (f);
- (2) referral to or participation in a pretrial or post trial diversion program; and
- (3) convictions that have been sealed, dismissed, expunged or statutorily eradicated pursuant to law.
Once a conditional employment offer has been made and the criminal history obtained, AB 1008 provides that the employer must perform an “individualized assessment” before denying an applicant a position solely or in part because of conviction history. This assessment makes employers justify denying the applicant the position because the employer must weigh the relevance of the conviction history in consideration of position’s specific job duties. The individualized assessment calls on employers to consider and weigh:
- The nature and gravity of the offense and conduct;
- The time that has passed since the offense or conduct and completion of the sentence; and
- The nature of the job held or sought.
An employer “may, but is not required to, commit the results of this individualized assessment to writing.” However, once a preliminary decision is made that the applicant’s conviction history is disqualifying, the employer is required to provide a written notification to the applicant. While a justification or explanation of the why the employer made the preliminary decision is not required, the employer must:
- Provide the written notice identifying the disqualifying conviction or convictions that triggered the preliminary decision to rescind the offer;
- Include a copy of the conviction history report, if any;
- Provide an explanation that the applicant has the right to respond to the notice within at least five (5) business days, and that the response may include submission of evidence challenging the accuracy of the conviction record, or evidence of rehabilitation or mitigating circumstances or both.
The employer must wait (5) business days until it can make any final determination based on conviction history. If the applicant chooses to dispute the conviction history and will provide supporting evidence, the employer is required to provide the applicant an additional five (5) business days to respond to the notice. The employer must consider any additional evidence or documents the applicant provides in response to the notice before making a final decision.
If the employer makes a final adverse decision based on the conviction history, the applicant must receive notice in writing from the employer. The notice should include any existing procedure the employer has to challenge the decision, as well as notification of the applicant’s right to file a complaint with the Department of Fair Employment and Housing.
To ensure compliance with the January 1, 2018 effective date, it is critical that California employers relying on criminal records to screen applicants or employees work with qualified legal counsel to review all of affected policies, procedures, and other documents related to the screening process (e.g., job applications, offer letters, guidelines for recruiters, adverse action procedures, etc.).