Ban the Box
On October 14, 2017, Governor Jerry Brown signed AB 1008 into law, enacting a broad “Ban the Box” law that takes effect on January 1, 2018. The new law prohibits most California public and private employers from asking an applicant about criminal conviction history until after a conditional offer of employment has been made. Therefore, within less than 2 months, California employers will have to modify job applications and ensure criminal background checks are not conducted prior to an employer making a conditional offer of employment.
Background on Ban the Box Legislation
The passing of AB 1008 follows a recent history of related California legislation. In 2013, California enacted Labor Code section 432.9, which prohibited public employers from inquiring about criminal conviction history until the employer has determined that the applicant met the minimum qualifications for the job. Changes in local laws followed, as the cities of Los Angeles and San Francisco enacted their own “ban-the-box” ordinances, applicable to private employers doing business in those cities. Then, in June 2017, the California Fair Employment and Housing Council promulgated new regulations that limit an employer’s ability to consider the criminal history of a job applicant or employee when making employment decisions.
Who is Impacted by AB 1008?
AB 1008 amends the California Fair Employment and Housing Act (FEHA), which covers all California employers with five or more employees. Only the following positions are exempted: (1) positions for which a government agency is required by law to conduct a conviction history background check; (2) positions with criminal justice agencies; (3) Farm Labor Contractors (as defined by the Labor Code); and (4) positions for which a state, federal, or local law mandates that an employer conduct a criminal history background check for employment purposes, or restricts employment based on criminal history.
When does it go into effect?
AB 1008 goes into effect on January 1, 2018.
What constitutes prohibited actions?
The following conduct is now prohibited before an employer makes a conditional offer of employment:
- Including in any application (whether written or oral) any question that seeks the disclosure of an applicant’s conviction history;
- Considering an applicant’s conviction history;
- Considering, distributing, or disseminating 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 (except as provided in Labor Code § 432.7(a)(1) and (f))
- referral to or participation in a pretrial or post-trial diversion program; and
- convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.
What’s allowable following a conditional offer of employment?
After extending a conditional offer of employment, the employer may conduct a background check and obtain a record of the applicant’s criminal history. If the criminal record reveals information that the employer feels necessary to reject the applicant solely or in part because of the applicant’s conviction history, the employer must evaluate if the conviction history would have a “direct” and “adverse” relationship with the specific duties of the job. As part of the evaluation, the employer should consider the nature and gravity of the offense or conduct, the time that has passed since the conduct and completion of the sentence, and the nature of the job held or sought.
If the employer makes a preliminary determination that the offense is worthy of disqualification, the employer is required to notify the applicant in writing and include numerous required elements such as the disqualifying conviction(s), a copy of the conviction history report, and an explanation of the applicant’s right to respond. After the notification is provided, the applicant has five days to respond.
All California employers should review recruitment policies, procedures and forms to ensure they adhere to the latest “Ban the Box” law, especially the revised prohibitions and processes required for applicant notification and disqualification. Employers should also ensure the proper classification of jobs and the determination of those jobs that may be exempt from the provisions within AB 1008.
Should you have questions about the Ban the Box law, or any of California’s labor laws, don’t hesitate to to contact leading employment lawyers at Kingsley & Kingsley prior to AB 1008’s effective date of January 1, 2018. Feel free to call us toll-free at (888) 500-8469 or click here to contact us via email.
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