Forget about asking job applicants to disclose their criminal history. In fact, don’t even put those questions on a job application. Simply having a question about an applicant’s conviction history on a job application, or considering an applicant’s conviction history before a conditional offer of employment is made, will now expose California employers to lawsuits and potential liability.

This significant change in the law is thanks to AB 1008 – California’s “Ban the Box law”—signed by Governor Brown on October 14, 2017. The bill adds Government Code section 12952 to California’s Fair Employment and Housing Act (“FEHA”), which makes these pre-employment practices unlawful. The law takes effect on January 1, 2018.

Many states and local jurisdictions have some form of a Ban the Box law on the books. The term “ban-the-box” refers generally to restrictions on an employer’s ability to make pre-hire and other employment decisions based on the applicant or employee’s criminal records.  California enacted similar pre-hire restrictions in 2013 that only applied to public employers. The Ban the Box law replaces the 2013 pre-hire restrictions for public entities and extends new restrictions to private businesses with five (5) or more employees, with limited exceptions. Other existing restrictions, such as the Labor Code’s prohibition on using arrests not resulting in conviction to make employment decisions, remain in effect and are duplicated in Section 12952.

Earlier this year, the Fair Employment and Housing Council approved new regulations to limit the use of criminal history in employment decisions. (See SHLC Blog post, New California Regulation: Limitation on Employer Consideration of Criminal History). The new FEHA regulations reflect the Equal Employment Opportunity Commission’s enforcement position that use of criminal history may have an adverse impact on individuals of certain races, national origins, gender or religions and thus be discriminatory under Title VII.

The FEHA regulations are designed to prevent unlawful discrimination and outline certain standards and procedures employers must meet to avoid a finding of discrimination. The Ban the Box law, however, is not an express anti-discrimination law. Rather, the Ban the Box law identifies a number of dos and don’ts in the hiring process.

What Does Ban the Box Law Do?

Applications and Interviews

Under the new law, employers with five (5) or more employees cannot: (1) include any question about an applicant’s criminal conviction history on an employment application; or (2) inquire into or consider an applicant’s conviction history before he or she receives a conditional offer of employment. Further, an employer cannot consider: an applicant’s arrest that did not result in a conviction; referral to or participation in a pretrial or post trial diversion program; or convictions that have been sealed, dismissed, expunged or eradicated pursuant to law. If any of this information is discovered by the employer, it cannot distribute or disseminate the information to others.

Considering Convictions

An employer who intends to deny an applicant a position of employment “solely or in part because of the applicant’s conviction history” 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, and consider certain topics when making that assessment.”  For example, the employer must consider the following when making an individualized assessment:

• The nature and gravity of the offense or 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.

Notice of Disqualification

Employers must provide applicants written notification that a conviction disqualified them from the job.  The notice must include:

• The disqualifying conviction(s);
• A copy of the conviction history report, if any; and
• The applicant’s right to respond with evidence challenging the accuracy of the conviction history report, evidence of rehabilitation, and/or evidence of mitigating circumstances, along with the response deadline.

Applicant Response and Reconsideration

An applicant that is provided with a notice of disqualification shall have at least five (5) business days to respond. The applicant’s response must notify the employer in writing that he/she disputes the accuracy of the report and is in the process of obtaining evidence supporting that assertion. If the applicant responds to the notice within the 5 business days allowed, the applicant must be provided an additional 5 business days to respond and provide supporting evidence. Employers must then consider the information submitted by the applicant before making a final decision.

Notice of Final Decision

Employers must notify applicants in writing of the following if the final decision is to deny employment:

• 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 Department of Fair Employment and Housing.

Recommendations to Employers

• Become familiar with the Ban the Box law and its new requirements.
• Revise employment applications to eliminate questions about criminal conviction history.
• Train those involved in the hiring process on Ban the Box law’s restrictions, such as not asking about criminal history during employee interviews.
• Update hiring policies and procedures to ensure they comply with the new requirements, including making individualized assessments and providing adequate notice to disqualified applicants.

Newly enacted laws affecting California employers, including the Ban the Box law, will be discussed during our New Year Employment Law Update for California Employers Webinar on December 7, 2017. For more information and registration click here.

To view the full text of AB 1008, click here.