Written By ESR News Blog Editor Thomas Ahearn
On October 14, 2017, California Governor Jerry Brown signed into law new “Ban the Box” legislation – Assembly Bill 1008 (AB 1008) – to prohibit private employers in the state with five or more employees from inquiring about or considering a job applicant’s conviction history prior to a conditional offer of employment, and sets requirements for consideration of conviction histories in employment decisions.
In 2013, California passed Ban the Box legislation that applied to public state agencies, cities, and counties. Currently, the California Fair Employment and Housing Act (FEHA) prohibits an employer from engaging in various defined forms of discriminatory employment practices. AB 1008 – which takes effect January 1, 2018 – makes it unlawful for private employers with five or more employees in California to:
- To include on any application for employment, before the employer makes a conditional offer of employment to the applicant, any question that seeks the disclosure of an applicant’s conviction history.
- To inquire into or consider the conviction history of the applicant, including any inquiry about conviction history on any employment application, until after the employer has made a conditional offer of employment to the applicant.
- To consider, distribute, or disseminate information about any of the following while conducting a conviction history background check in connection with any application for employment: (A) Arrest not followed by conviction, except in the circumstances as permitted in paragraph (1) of subdivision (a) and subdivision (f) of Section 432.7 of the Labor Code. (B) Referral to or participation in a pretrial or posttrial diversion program. (C) Convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.
Under AB 1008, an employer that intends to deny an applicant a position of employment solely or in part because of the applicant’s conviction history shall make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position. In making the assessment, the employer shall consider:
- The nature and gravity of the offense or conduct.
- The time that has passed since the offense or conduct and completion of the sentence.
- The nature of the job held or sought.
If the employer makes a preliminary decision that the applicant’s conviction history disqualifies the applicant from employment, the employer shall notify the applicant of this preliminary decision in writing. That notification may, but is not required to, justify or explain the employer’s reasoning for making the preliminary decision. The notification shall contain all of the following:
- Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer.
- A copy of the conviction history report, if any.
- An explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond. The explanation shall inform the applicant that the response may include submission of evidence challenging the accuracy of the conviction history report that is the basis for rescinding the offer, evidence of rehabilitation or mitigating circumstances, or both.
The applicant will have at least five (5) business days to respond to the notice before the employer may make a final decision. If the applicant notifies the employer in writing within the five business days that he or she disputes the accuracy of the conviction history that the decision to rescind a job offer was based on, the applicant will have five additional business days to respond to the notice.
Under the Ban the Box legislation – named for the box applicants are asked to check if they have a criminal record – an employer shall consider information submitted by the applicant before making a final decision. If an employer makes a final decision to deny an application solely or in part because of the applicant’s conviction history, the employer shall notify the applicant in writing of all the following:
- The final denial or disqualification. The employer may, but is not required to, justify or explain the employer’s reasoning for making 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.
AB 1008 does not apply to a position for which a state or local agency is otherwise required by law to conduct a conviction history background check, a position with a criminal justice agency, a position as a Farm Labor Contractor, or a position where an employer is required by any state, federal, or local law to conduct criminal background checks for employment or restrict employment based on criminal history.
As reported by ESR News, a study released by the National Employment Law Project (NELP) estimated that approximately 65 million people in the United States have criminal records – more than one in four American adults – showing the need for Ban the Box laws. NELP, a nonprofit organization supporting low-wage workers and the unemployed, has since revised that number up to 70 million people.
Currently, 29 states and more than 150 cities and counties have “Ban the Box” laws that remove the criminal history question from applications that applicants are asked to check if they have criminal records and delay such questions until later on in the hiring process so ex-offenders are given a chance to show their knowledge, skills, and abilities to perform the job in question, according to NELP.
To help employers comply with Ban the Box laws, the Lawyers’ Committee for Civil Rights Under Law, the National H.I.R.E. Network, and the National Workrights Institute developed a report “Best Practice Standards: The Proper Use of Criminal Records in Hiring” while consulting with background screening experts including Employment Screening Resources® (ESR) founder and CEO Attorney Lester Rosen.
More Information about Ban the Box from ESR
Employment Screening Resources® (ESR) – a leading global background check provider – will soon be coming out with educational materials to help employers comply with Ban the Box legislation. ESR offers employers a Ban the Box Information Page that contains news and legal updates about states, cities and counties, and resources. The ESR Ban the Box Information page is available at www.esrcheck.com/Ban-the-Box/.
One issue facing employers with AB 1008 is that the bill leaves intact overlapping city and county Ban the Box rules – such as those laws in Los Angeles and San Francisco – and does not give a clear state-wide solution so that employers will need to work with a background screening firm that can guide them through compliance with various rules. To learn more about ESR, visit www.esrcheck.com.
NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.
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