In October 2017, Governor Jerry Brown to sign into law Assembly Bill 1008 (Chapter 789). Effective January 1, 2018, the legislation makes California the tenth (and by far the largest) state to enact so-called “ban the box” or “fair chance” legislation.
The “Ban the Box” Movement
Employers have historically required employment applicants to disclose any history of criminal convictions. Minor traffic violations and similar offenses are sometimes expressly excluded. Many proponents of ban-the-box type laws believe the practice discourages individuals from seeking employment, even where the conviction probably would not have disqualified the person.
An international campaign to prohibit the practice began in the late 1990s. By the early 2000s, many jurisdictions had eliminated the question from public sector job applications, but laws applicable to private employers have evolved more slowly. According to the National Employment Law Project, by August 2017 about 160 states, counties and municipalities nationwide (including several in California) had extended ban-the-box prohibitions to private employers.
Assembly Bill 1008 amended California’s Fair Employment and Housing Act (“FEHA”). As amended, FEHA prohibits employers from:
- Inquiring about or considering an applicant’s conviction history unless and until it makes an offer of employment.
- Including on any employment application a question concerning an applicant’s conviction history (though a pending charge as to which the applicant has been released on bail is not a “conviction” for FEHA purposes).
- If a history is obtained, considering, distributing, or releasing information related to arrests not resulting in a conviction or which have been sealed, dismissed, or otherwise legally eliminated removed from the applicant’s history.
The law does not prohibit a covered employer from making an offer of employment conditional on receipt of a satisfactory criminal history check. It also does not apply:
- To farm labor contractors.
- To employers with fewer than five employees.
- When the state, federal, or local law requires a background check or makes persons with specified convictions ineligible for employment.
The “Fair Chance” Process
FEHA continues to apply if a post-offer history check reveals convictions. First, the employer must determine whether the conviction(s) disqualify the applicant, considering the specific job duties, the nature and seriousness of the offense and how long ago it occurred.
If the employer wishes to withdraw an offer of employment based on the applicant’s conviction history, it must give the applicant written a notice of its preliminary decision. While it need not disclose the employer’s specific reasoning, the notice must:
- Identify the conviction on which the decision is based.
- Include a copy of the conviction history.
- Explain the applicant’s right to challenge the decision by submitting evidence of inaccuracies in the history, evidence of rehabilitation, and/or mitigating circumstances.
- Set a deadline (at least five business days later) for submitting the response.
If the employer makes a final adverse decision, it must provide another written notice to the employee. That notice must include the following:
- A statement that it is the employer’s final decision.
- Any process the employer may have for requesting reconsideration
- Notice of the applicant’s right to file a complaint with the California Department of Fair Employment and Housing.
Kerry L. Armstrong
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