The state of California has passed “ban the box” for all employers of organizations with five or more employees. Assembly Bill 1008, which amends the FEHA to add a new government code section 12952, will restrict employers from utilizing applicant’s conviction records in making an employment decision. AB 1008 includes a “ban the box” provision, and an exclusion against considering criminal convictions history until a conditional job offer has been made. As a result of this law, “California employers will need to modify their job applications and update their training for those involved in the hiring process.”

Governor Jerry Brown signed AB 1008 on October 14, 2017, and employers will have until January 1, 2018 to review their policies and procedures to ensure that they are in compliance.

There are exceptions to the new law based on certain positions:

• Required by a government agency to check conviction history
• Position with criminal justice agencies
• Farm Labor Contractors as defined in the Labor Code
• Positions as to which the law requires employers (Education, Financial etc.) to check criminal histories for employment

Assembly Bill 1008 will make it unlawful for California employers to:

• Include any question on a job application inquiring about previous criminal convictions (unless the application is completed after a conditional job offer has been made)
• Inquire or consider an applicant’s conviction history before a job offer is extended
• Consider, distribute, or disseminate information about criminal history that California already prohibits employers from considering, such as (a) an arrest not resulting in a conviction (except in the limited situations described in Labor Code section 432.7), (b) referral to or participation in a pretrial or post trial diversion program, and (c) convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law

The new law also requires employers to conduct an Individualized Assessment if they are going to be taking adverse action based on the criminal conviction. The assessment should look at three areas surrounding the conviction:

• How long it has been since the conviction occurred
• Completion of any sentencing
• The nature of the job being sought

If an employer decides to still take adverse action after the assessment, they must provide a written notice (in addition to what the FCRA already requires). The notice must include:

• Identification of the conviction at issue
• Copy of any conviction history report (which means the notice is required regardless of the source of the conviction history)
• Explanation of the applicant’s right to respond to the notice before the employer’s decision becomes final
• Statement of the deadline for that response
• Indication to the applicant that the response may include evidence challenging the accuracy of the conviction history and evidence of rehabilitation or mitigating circumstances

Once an applicant decides to dispute the information on the background screening report, they will have five business days to provide any documentation to support their claims. If the applicant can produce said documentation, they will be afforded another five business days to respond. If the employer’s final decision is to still take adverse action, the employer must provide a second written notice to the applicant with the following:

• Final denial or disqualification
• Employer must challenge the decision or request reconsideration on any existing procedure
• Right to file a complaint with the Department of Fair Employment and Housing

All employers in the state of California should understand and prepare for AB 1008 “ban the box” laws by updating their employment applications, reviewing their hiring policies, and partnering with competent organizations that provide compliant employment background checks.