California has become the tenth state to pass the “ban-the-box” law which removes the conviction history question on job applications for private employers with five or more employees. Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont have already passed ban-the-box laws statewide.
Assembly Bill 1008 signed by Governor Jerry Brown will become effective January 1, 2018. AB 1008 adds a section to the California Fair Employment and Housing Act (FEHA) which prohibits an employer from engaging in various defined forms of discriminatory employment practices.
Employment Application. AB 1008 makes it an unlawful employment practice under FEHA for any employer with 5 or more employees to include on an employment application any question that seeks the disclosure of an applicant’s conviction history.
Considering An Applicant’s Criminal Conviction History. Under AB 1008, it is an unlawful employment practice to inquire or consider an applicant’s criminal conviction history until that applicant has received a conditional offer of employment.
Background Check. Under AB 1008, it is also unlawful when conducting a conviction history background check, to consider, distribute, or disseminate information related to specified prior arrests, diversions, and convictions.
Individualized Assessment. Under AB 1008, the employer cannot deny an applicant a position because of a criminal conviction history until the employer performs an individualized assessment. The employer must make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job.
Written Notification to Applicant. The employer must notify the applicant in writing of its decision to rescind the offer based on the specific disqualifying criminal conviction(s). The employer must also inform the applicant of his/her 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.
If the applicant responds to the employer’s notice in writing that he/she disputes the accuracy of the conviction history and is obtaining evidence, the employer must grant the applicant an additional 5 business days to respond to the notice. The employer must then consider any additional evidence or documents the applicant provides in response to the notice before making a final decision. If the employer ultimately decides to deny an applicant based on the criminal conviction, the employer must notify the applicant of this decision in writing.
All California employers with 5 or more employees should:
- Review employment application to make sure that it does not contain any question that seeks disclosure of an applicant’s criminal conviction history.
- Review policies/procedures to make sure that there is no inquiry into the criminal conviction history of an applicant before the applicant received a conditional offer of employment.
- Train HR and hiring personnel regarding the individual assessment and notification process after a conditional offer of employment is made and the applicant’s criminal background check reveals a criminal conviction.