Ban-The-Box And Other Restrictions On CA Employers Using Criminal History Of Job Applicants

On October 14, 2017, Governor Brown signed AB 1008 into law, requiring most employers with 5 or more employees, before denying 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, considering 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.  Employers may not seek any criminal history about an applicant until after the employer makes a conditional offer of employment to the applicant.  “Ban-the-Box” refers to the fact that employers may no longer include a question on their employment applications asking if an applicant has been convicted of a crime.

Employers may, after receiving information about a conviction, must make a preliminary decision on whether to deny employment  due to such history.  If so, the employer must provide the applicant written notification of the decision (and provide other specified pieces of information), and the applicant would then have 5 business days (in most cases) to respond to that notification before the employer may make a final decision.  The employer then must consider the applicant’s arguments before making a final decision, and then provide the employee with written notice of such final decision.  Employees who believe the employer violated any provision of this new law may file a complaint with the Dept. of Fair Employment and Housing (DFEH) (but this is not the employee’s exclusive remedy).

 Earlier this year, the City of Los Angeles passed an ordinance similar to AB 1008.  This new California law follows in the footsteps of the L.A. ordinance, and also of recent regulations by the EEOC and the DFEH indicating that using criminal history to deny jobs to applicants might violate laws against race/ethnicity discrimination.   

 –Adam K. Treiger