“Ban the Box” Bill Signed, Employers Prohibited from Asking about Past Convictions

The California Fair Employment and Housing Act (FEHA), prohibits an employer from engaging in various defined forms of discriminatory employment practices.

AB 1008 signed by the Governor on October 14, 2017, will make it an unlawful employment practice under FEHA for an employer with 5 or more employees to include on any application for employment any question that seeks the disclosure of an applicant’s conviction history, to inquire into or consider the conviction history of an applicant until that applicant has received a conditional offer, and, when conducting a conviction history background check, to consider, distribute, or disseminate information related to specified prior arrests, diversions, and convictions.

Employers who intend to deny an applicant a position of employment solely or in part because of the applicant’s conviction history are required 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, and to consider certain topics when making that assessment. Employers who make a preliminary decision to deny employment based on that individualized assessment are required to provide the applicant written notification of the decision. The notification must contain specific information as outlined here.

The applicant will then have 5 business days to respond to that notification before the employer may make a final decision. If the applicant notifies the employer in writing that he or she disputes the accuracy of the conviction history and is obtaining evidence to support that assertion, the employer will have to grant the applicant an additional 5 business days to respond to the notice.

Employers will be required to consider information submitted by the applicant before making a final decision. An employer who has made a final decision to deny employment to the applicant is require to notify the applicant in writing of specified topics outline in [SEC. 2. Section 12952 (division 5).

Exempt positions of employment: State or local agency positions that are otherwise required by law to conduct a conviction history background check; Criminal justice agency positions; Farm Labor Contractors; an other positions 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.

This bill becomes effective January 1, 2018

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