Ban the Box
On October 14, 2017, Assembly Bill 1008 (AB 1008) was signed into law by California Governor Jerry Brown. This new “Ban the Box†legislation (the “box†refers to the section on job applications that candidates check if they have a criminal record) is an added section to the California Fair Employment and Housing Act (FEHA) restricting the ability of California employers with 5 or more employees to make pre-hire and personnel decisions based on an individual’s criminal history.
Existing California law prohibits state and local agencies from inquiring about an applicant’s conviction history until the applicant is deemed qualified for the position. AB 1008 extends this prohibition to all employers in California with five or more employees.  The new law takes effect January 1, 2018 and will make it unlawful for private employers with five or more employees in California to:
- Include on any employment application a question that seeks disclosure of an applicant’s conviction history
- Inquire into or consider the conviction history of an applicant, until a conditional offer of employment has been extended the applicant
- Consider, distribute, or disseminate information relating to arrests that do not result in a conviction, diversion programs, or convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law
Under AB 1008, considering an applicant’s criminal history will be permissible only after the applicant has received a conditional offer of employment. Once that offer has been extended and the applicant’s criminal history is obtained, AB 1008 further provides that the employer cannot deny the applicant the position solely or in part based on the conviction history until after an individualized assessment is conducted by the employer. In this assessment, the employer is required to link relevant conviction history to specific duties of the position sought in order to justify denying the applicant the position. In specific, the assessment must consider:
- 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
If the employer concludes that the applicant’s conviction history is in fact disqualifying, the employer must notify the applicant of the preliminary decision in writing. Although the employer is not required to explain or justify the reasoning behind the preliminary decision, the employer is required to:
- Provide the applicant written notice of the disqualifying conviction(s) that form the basis for the preliminary decision to rescind the offer
- Include a copy of the conviction history report, if any
- Provide an explanation to the applicant that s/he has the right to respond to the notice within at least five (5) business days, and that the response may include the submission of evidence challenging the accuracy of the conviction record, or evidence of rehabilitation or mitigating circumstances or both
During this 5 business day period, the employer is restricted from making any final determination based on conviction history. Should the applicant timely notify the employer in writing that s/he disputes the conviction history and is obtaining evidence to support the dispute, the employer must provide an additional 5 business days to respond to the notice. The employer must also consider any additional evidence provided by the applicant in response to the notice before making a final decision.
Should the employer ultimately decide to deny an applicant based on their conviction history, the employer must notify the applicant in writing, and include notification of any existing procedure the employer has to challenge the decision, as well as notify the applicant’s of his or her right to file a complaint with the Department of Fair Employment and Housing.
It is estimated that approximately 70 million Americans have criminal records. Currently, 29 states and more than 150 cities and counties have passed “Ban the Box†legislature removing the criminal history question from job applications until further along in the hiring process, thereby providing ex-offenders a more level playing field in the hiring process.