State-Wide BAN THE BOX Law No More Criminal Conviction Questions on Employment Applications
October 17 2017
By Beth V. West
On October 14, 2017, Governor Brown signed Assembly Bill 1008 (the “Fair Chance Act”). The new law puts in place some protections for those individuals with criminal backgrounds seeking employment. The new law will be contained in Section 12952 of the California Government Code.
Existing law prohibits an employer, whether a public agency or private individual or corporation, from asking an applicant for employment to disclose, or from utilizing as a factor in determining any condition of employment, information concerning an arrest or detention that did not result in a conviction, or information concerning a referral or participation in, any pretrial or post-trial diversion program, except in limited circumstances.
Existing law also prohibits a state or local agency from asking an applicant for employment to disclose information regarding a criminal conviction, except as specified, until the agency has determined the applicant meets the minimum employment qualifications for the position.
Summary of New Law.
The Fair Chance Act repeals the prohibition on a state or local agency from asking an applicant for employment to disclose information regarding a criminal conviction, as described above. Instead, the law now provides that it is an unlawful employment practice under California’s Government Code (in the “Fair Employment and Housing Act”) for an employer with 5 or more employees to do the following:
- Include on any application for employment any question that seeks the disclosure of an applicant’s conviction history.
- Inquire into or consider the conviction history of an applicant until that applicant has received a conditional offer of employment.
- Consider, distribute, or disseminate any of the below information while conducting a conviction history background check in connection with an employment application:
- Certain arrests not followed by a conviction;
- Referrals to or participation in a pretrial or post trial diversion program; and
- Convictions that have been sealed, dismissed, expunged, or statutorily eradicated.
Further, the new law requires that an employer who intends to deny an applicant a position of employment solely or in part because of the applicant’s conviction history to do the following:
- Make an individualized assessment of whether the conviction history has a direct and adverse relationship with the specific duties of the job—considering the nature and gravity of the offense, the time passed since the offense and completion of the sentence, and the nature of the job held or sought.
- Notify the applicant in writing of a preliminary decision to deny employment based on that individualized assessment, including disqualifying convictions forming the basis for rescission of the employment offer, a copy of the applicant’s conviction history report, and explanation of the applicant’s right to respond to the preliminary decision before it is final.
- Allow the applicant five business days to respond to the notice. If within five business days of the notice, the applicant notifies the employer in writing that the applicant disputes the accuracy of the conviction history report that was the basis for the preliminary decision to rescind the offer and that the applicant is taking specific steps to obtain evidence supporting that assertion, then the applicant shall have an additional five business days to respond to the notice.
Ultimately, if an employer makes a final decision to deny an application solely or in part because of the applicant’s conviction history, the employer must notify the applicant in writing of all the following:
- The final denial or disqualification. The employer may, but is not required to, justify or explain the employer’s reasoning for making the final denial or disqualification.
- Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration.
- The right to file a complaint with the California Department of Fair Employment and Housing (DFEH).
The Fair Chance Act does not apply in any of the following circumstances:
- To a position for which a state or local agency is otherwise required by law to conduct a conviction history background check.
- To a position with a criminal justice agency, as defined in Section 13101 of the Penal Code.
- To a position as a Farm Labor Contractor, as described in Section 1685 of the Labor Code.
- To a position where an employer or agent thereof is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history.
California Employers Should do the Following:
- Review and update all employment application and hiring materials to ensure there are no questions requiring an applicant to disclose criminal conviction history.
- Train all managers, supervisors, human resources, and other individuals involved in the recruitment and hiring process to ensure they are aware of the requirements under the new law.
- Take other reasonable steps (e.g. periodic audits of recruitment and hiring practices) to ensure that they are in compliance with the law.
The Labor & Employment attorneys at Weintraub Tobin have extensive experience counseling and defending employers in all areas of employment law and are happy to assist employers in auditing their recruitment and hiring practices to ensure compliance with California law. Please feel free to contact partner, Beth West, or any of the other Labor & Employment attorneys.