Attention California employers … on October 12, 2017, California Governor Jerry Brown signed AB 1008 into law. This new law amends the California Fair Employment and Housing Act (FEHA) and, starting January 1, 2018, officially “bans the box” on California (in other words, it prohibits California employers from inquiring about an applicant’s criminal history early in the hiring process).
This new law applies to both public and private employers with five or more employees. Under the law, employers are prohibited from inquiring into an applicant’s conviction history until after a conditional offer of employment is made. Specifically, employers are prohibited from doing the following:
- Including any question that seeks the disclosure of an applicant’s conviction history on any application for employment — before the employer makes a conditional offer of employment to the applicant.
- Inquiring into or considering the conviction history of the applicant, including any inquiry about conviction history on any employment application, until after the employer has made a conditional offer of employment to the applicant.
- Considering information about any of the following while conducting a conviction history background check in connection with any application for employment:
- Arrest not followed by conviction.
- Referral to or participation in a pretrial or posttrial diversion program.
- Convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.
In addition, if an employer intends to deny employment based on the applicant’s conviction history (after conducting a lawful, post offer criminal background check), the employer must go through the “fair chance process” before employment is denied.
Under this process, employers must take the following steps:
- Make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.While not required to be in writing, it is recommended that employers document the assessment in writing
In making the assessment, the employer must consider all of the following:
- The nature and gravity of the offense or conduct.
- The time that has passed since the offense or conduct and completion of the sentence.
- The nature of the job held or sought.
- If, following the assessment, the employer makes a preliminary decision that the applicant’s conviction history disqualifies the applicant from employment, the employer shall notify the applicant of this preliminary decision in writing.That notification may, but is not required to, justify or explain the employer’s reasoning for making the preliminary decision.
The notification must contain all of the following elements:
- Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer.
- A copy of the conviction history report, if any.
- An explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond. The explanation shall inform the applicant that the response may include submission of evidence challenging the accuracy of the conviction history report that is the basis for rescinding the offer, evidence of rehabilitation or mitigating circumstances, or both.
- After receipt of the notification, the applicant has at least five business days to respond to the notice before the employer may make a final decision.If, within the five business days, the applicant notifies the employer in writing that the applicant disputes the accuracy of the conviction history report and that the applicant is taking specific steps to obtain evidence supporting that assertion, then the applicant shall have five additional business days to respond to the notice.
- The employer must consider information submitted by the applicant (explained above) before making a final decision.
- If an employer makes a final decision to deny an application solely or in part because of the applicant’s conviction history, the employer must notify the applicant in writing of all the following:
- The final denial or disqualification. The employer may, but is not required to, justify or explain the employer’s reasoning for making the final denial or disqualification.
- Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration.
- The right to file a complaint with the DFEH.
This new law does not apply to the following employers:
- Positions for which a state or local agency is required by law to conduct a conviction history background check,
- Criminal justice agencies,
- Farm labor contractors, and
- Employers required by state, federal, or local law to conduct background checks or restrict employment based on criminal history.
Take home for employers
With this new law (and the accompanying salary history ban, discussed here), it is critical that all California employers review the hiring practices to insure compliance with the new laws. In addition, employers need to provide training to those people involved in the hiring process about the new ban the box requirements, as these requirements impact the interview process. Finally, all California employers should review their job applications and verify that any inquiries regarding criminal history are removed from the application before January 1st.
NOTE: This new law does not supersede the local ordinances (i.e. in Los Angeles and San Francisco). Therefore, employers in these locations need to comply with the local ordinance requirements as well.