New California Laws Part 3- Ban the Box

Ban the Box:

California A.B. 1008 amends the Fair Employment and Housing Act (“FEHA”) and exempts from its coverage only a handful of positions: positions for which government agencies are required by law to check conviction history; positions with criminal justice agencies; farm labor contractors; and positions for which the employer is required by federal, state or local law to check criminal history or to restrict employment based on criminal history. The new law makes it an unlawful employment practice for employers with five or more employees 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;
  • inquire into or consider an applicant’s conviction history before the applicant receives a conditional offer of employment; and
  • consider, distribute, or disseminate information related to arrests that did not result in convictions, diversion program participation, and/or convictions that were sealed, dismissed, expunged or statutorily eradicated.

Employers may only consider an applicant’s conviction history after making a conditional offer of employment. If an employer intends to deny hire solely or in part because of conviction history, the employer must conduct an individualized assessment to determine whether that history has a direct and adverse relationship with the specific duties of the job. Moreover, when making the individualized assessment, the employer must consider the nature and gravity of the offense or conduct, the time that has passed since the date of the offense or conduct and completion of any sentence, and the nature of the position held or sought. Employers may, but are not required to, record the results of their individualized assessments in writing.

If the individualized assessment leads to a preliminary decision that the conviction history is disqualifying, the employer must then follow a specific procedure, sometimes referred to as a “fair chance” process, as follows:

  • First, the employer must provide written notice to the applicant. The written notice must identify the conviction on which the preliminary decision is based, include a copy of the conviction history report, if any, and explain the applicant’s right to respond to the notice within no less than five business days. The notice must also explain the applicant’s right to submit evidence challenging the accuracy of the conviction record, or evidence of rehabilitation, mitigating circumstances, or both. Employers are prohibited from making any final determinations based on conviction history during the minimum five day business period.
  • Second, if the applicant timely notifies the employer in writing that the applicant is disputing the conviction history and is taking steps to obtain evidence to do so, the employer must provide the applicant an additional five business days to respond. The employer must take into consideration any additional evidence the applicant provides in response before making a final decision. 

Finally, if after receiving the response from the applicant the employer makes a final decision to deny employment based on conviction history, the employer must again notify the applicant in writing. This final notification must include: the final denial; information about any existing procedure to challenge the decision or request reconsideration; and the right to file a complaint with the Department of Fair Employment and Housing. The employer has the option to include an explanation for making the final denial.

How to Prepare

-Remove questions which seek criminal conviction information from all hard copy and electronic employment applications.

-Review interview guidelines and hiring processes to ensure compliance with the law.

-Train managers, hiring, and recruiting personnel on new law so they know that they may not seek or rely on conviction history before a conditional offer of employment is made.

-Adopt procedures to comply with the individualized assessment and “fair chance” process requirements.

-Review and revise, as necessary, “adverse action” notifications to comply with federal and California fair credit reporting law requirements.