Statewide Ban-the-Box Law Approved by California Legislature

In February 2017, the California Assembly introduced Assembly Bill 1008, which proposes an addition to the California Fair Employment and Housing Act (FEHA) that would create a statewide restriction on employer’s abilities to make pre-hire and personnel decisions based on an individual’s criminal history, along with a “ban-the-box” rule.

As of Sept. 15, 2017, the bill has passed in both houses and is now sitting on Governor Jerry Brown’s desk. The governor has until Oct. 15, 2017, to sign, veto or otherwise not act.

The trend of criminal background legislation activity has been sweeping California over the past year, as Los Angeles recently mandated a ban-the-box law.

Also, California has an existing law that prohibits state and local agencies from asking a job applicant to disclose a conviction on an application until he/she is determined as qualified for the position. The new Assembly Bill 1008 would extend this existing law to all employers in California with five or more employees.

Under the new bill, employers cannot:

• Include any questions on applications for employment that seek the disclosure of conviction history
• Inquire or consider the conviction history of an applicant before the applicant receives an offer of employment
• Consider, distribute or disseminate information about any of the following while conducting a criminal history background check about any application for employment:
  • An arrest that did not result in a conviction, subject to the exceptions in Labor Code 432.7(a)(1) and (f)
  • Referral to or participation in a pretrial or post-trial diversion program
  • Convictions that have been sealed, dismissed, expunged or statutorily eradicated pursuant to law

Furthermore, the new bill states that once the offer of employment is presented to the applicant and criminal history is obtained, an employer cannot deny an applicant a position solely or in part because of conviction history until the employer performs an assessment, which would consider:

• The nature and gravity of the offense and conduct
• The time that has passed since the offense or conduct and completion of the sentence
• The nature of the job held or sought

Once the employer performs the assessment and decides the applicant’s conviction history disqualifies them from the position, the employer must notify the applicant in writing. However, the employer is not required to explain the reasoning behind its decision. Along with the written notification, employers must:

• Include a copy of the conviction report
• Provide an explanation that the applicant has the right to respond to the notice within at least five business days, and that the response may include submission of evidence challenging the accuracy of the conviction record, or evidence of rehabilitation or mitigating circumstances or both

GovDocs Labor Law News will continue to monitory this bill as it reaches the governor’s desk. Check back in around Oct.15, 2017, for more information.