On Saturday, October 14, 2017, California Gov. Jerry Brown signed Assembly Bill 1008 into law, which is set to take effect on January 1, 2018. Known as the “Ban the Box” legislation, in reference to the box applicants are asked to check if they have any prior criminal convictions, the new law prohibits employers with five or more employees from inquiring about or considering a job applicant’s conviction history prior to an offer of employment.
Specifically, the new law amends California’s Fair Employment and Housing Act (FEHA) by making it unlawful for employers in California with five or more employees to include on any application for employment any question that seeks the disclosure of an applicant’s conviction history, to inquire into or consider the conviction history of an applicant until that applicant has received a conditional offer, and, when conducting a conviction history background check, to consider, distribute, or disseminate information related to specified prior arrests, diversions, and convictions. The law expands existing “Ban the Box” legislation currently in effect in fifteen local jurisdictions, including Los Angeles and San Francisco, to California generally.
Moreover, the new law also requires an employer who intends to deny an applicant a position of employment solely or in part because of the applicant’s conviction history to 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 making the assessment, the employer must 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, and the nature of the job sought by the applicant.
If the employer, after making this assessment, decides to deny employment, the employer must provide the applicant with written notification of this decision consisting of notice of the disqualifying conviction, a copy of the conviction history report, if any, and an explanation of the applicant’s right to respond to the notice. The applicant would then have five business days to respond to the notification before the employer may make a final decision. The employer’s final decision must be issued in writing to the applicant and must contain the final denial or disqualification, any existing procedure the employer has for the applicant to challenge the decision, and notice of the right to file a complaint with the Department of Fair Employment and Housing.