California Ban the Box Announcement

October 25th, 2017 | Sterling

On October 14, 2017, Governor Jerry Brown signed Assembly Bill 1008, which will prohibit employers in California from including on an application for employment, any question that seeks an applicant’s conviction history until the individual has received a conditional offer of employment.  The bill would also require an employer to perform an individualized assessment of whether the applicant’s criminal history has a direct relationship with the specific duties of the position sought.  The new law will become effective on January 1st, 2018.  Please see below for a summary of this new law.

This law will make it an unlawful discriminatory practice for an employer with five or more employees to do the following:

  • To include on an application for employment, or through any other means, any question that seeks an applicant’s criminal history prior to a conditional offer of employment
  • To consider, distribute or disseminate information about any of the following while conducting a criminal background check
    1. Arrests that did not result in conviction
    2. Referral to or participation in a pre or post trial diversion program
    3. Convictions that have been sealed, dismissed, expunged or statutorily eradicated by law

Prior to using criminal conviction history information to deny employment, an employer must 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. The employer may, but is not mandated to give the results of the analysis to the applicant in writing. The employer must consider the following factors:

  • 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 position sought

If the employer makes a preliminary decision to disqualify an applicant, the employer must notify the applicant in writing and include the following:

  • Notice of the disqualifying conviction that is a basis for the preliminary decision
  • A copy of the conviction history
  • An explanation of the applicant’s right to respond and includes a notice that the applicant may submit evidence that the information is not accurate and or evidence of rehabilitation

The bill allows applicants at least five days to respond to the employers’ notice.  If the applicant responds in that time and states that they are obtaining evidence of either the inaccuracy of the report or evidence of rehabilitation, the applicant must be given an additional five days to obtain this information.  If the applicant submits additional information, the employer must consider it before their final decision.

This bill does not apply to the following positions:

  • a position with a criminal justice agency
  • a position as a farm labor contractor
  • a position where an employer is required by any state, federal or local law to conduct criminal background checks or employers are required to restrict employment based on criminal history.

This bill does not pre-empt any other ordinances or laws that employers may be obligated to comply with for example the Los Angeles Fair Chance Initiative for Hiring Ordinance.

The full text of the bill can be found here:

The information contained herein is for informational purposes only. Clients are encouraged to consult with their legal counsel on the impact of this new law. Sterling is not a law firm, and none of the information contained in this notice is intended as legal advice.

Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.