Employment Law Alert: California’s New “Ban The Box” Law Restricts Consideration of Job Applicant Criminal History

California Governor Jerry Brown recently signed  Assembly Bill 1008, a “ban the box” law that takes effect on January 1, 2018. The new law bans employers from including criminal conviction history inquiries on employment applications, or otherwise inquiring about a job applicant’s conviction history, before making a conditional offer of employment.

AB 1008 also establishes strict requirements that employers must follow before rejecting an applicant based upon criminal history. The employer must first make an “individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job….”   In so doing, the employer must consider all of the following:

(a) The nature and gravity of the offense or conduct;

(b) The time that has passed since the offense or conduct and completion of the sentence; and,

(c) The nature of the job held or sought.

While the law does not require employers to put the individualized assessment in writing, we would recommend that employers do so. In many cases, it may be difficult or impossible for an employer to prove satisfaction of the individualized assessment requirements based solely on the memory of current or former employees.

If an employer makes a preliminary decision to reject an applicant based in whole or in part upon criminal history, the law requires the employer to notify the applicant in writing. The employer is not required to explain or justify the preliminary decision in the notice. However, the written notice of the preliminary decision must contain:

(a) The disqualifying conviction(s);

(b) A copy of any conviction history report; and,

(c) Explanation of the applicant’s right to respond before the decision becomes final.  The notice must inform the applicant that the applicant may submit evidence challenging the accuracy of the report, and/or evidence of rehabilitation or mitigating circumstances.

The employer must provide the applicant with at least five business days to respond, before making a final decision. If the applicant timely notifies the employer that the applicant disputes the accuracy of the conviction history and is taking specific steps to obtain evidence to prove its inaccuracy, then the employer must provide five additional business days to respond. The law requires the employer to consider the applicant’s response before making a final decision.

If an employer makes a final decision to deny an applicant based in whole or in part on the conviction history, the employer must notify the applicant in writing of:

(a) The final decision (explanation or justification is not required);

(b) Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration; and,

(c) The right of the applicant to file a complaint with the California Department of Fair Employment & Housing.

AB 1008 also makes it unlawful to consider, distribute, or disseminate information about arrests that did not result in a conviction (except in cases where criminal charges are pending trial), referral to or participation in a pretrial or posttrial diversion program, and convictions that have been sealed, dismissed, expunged, or statutorily eradicated. Please note, however, that these are not the only types of conviction history that are considered “off limits” for hiring purposes. California law also prohibits consideration of any non-felony convictions for marijuana possession that are more than two years old, and juvenile criminal convictions. Background check agencies are also generally prohibited from reporting convictions more than seven years old.

California employers should take a variety of actions to ensure compliance with AB 1008 by January 1, 2018. First, pre-offer employment applications should be revised to remove criminal history inquiries. Offer letter forms should be revised to address any post-offer criminal history inquiries, consistent with the law. Employers may set up a separate post-offer criminal history questionnaire separate from the job application form. Care should be taken to ensure that such questionnaires plainly do not ask for any of the “off limits” information referenced above. We recommend that employers develop (and/or modify existing) forms to document compliance with the individualized assessment requirements, and to satisfy the mandatory written notice requirements for preliminary and final decisions (including the above-referenced mandatory content of such notices).

Employers are also cautioned to ensure compliance with “ban the box” laws in the many other states and localities that have adopted such laws across the country, including San Francisco and Los Angeles. Employers should consult with legal counsel for guidance about the differences in these laws in the locations where they are hiring.

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