Effective January 1, 2018, California will be the 10^th state to “ban the box” in employment screening for all employers, public or private.

Governor Jerry Brown signed Assembly Bill 1008 into law on October 15, making it part of the California Fair Employment and Housing Act. It forbids any employer with five or more employees to make inquiries about, or conduct background checks on, an applicant’s criminal history, prior to making a conditional offer of employment to the applicant. More specifically it prohibits an employer from:

• using an employment application that seeks disclosure of an applicant’s criminal conviction history;
• inquiring about or considering the criminal conviction history of an applicant during the pre-employment process; or
• considering arrests without convictions, participation in pre- or post-trial diversion programs, or convictions that have been sealed or expunged.

Employers may make inquiries and background checks on an applicant’s criminal record only after they have made a conditional job offer to that applicant.

Before denying an applicant based solely or in part on the applicant’s conviction history, the employer is required to assess (but not document) whether the conviction history has a direct and adverse relationship with the specific duties of the job, and justified the decision. Assessment considerations include the nature and gravity of the offense; the time that has passed since the crime was committed and the completion of the sentence; and the nature of the job applied for.

At this point, the decision is considered “preliminary.” The law requires the employer to provide written notification of the decision, which is to include specific reference to the conviction(s) on which the preliminary disqualification is based, a copy of the criminal background report, and notification that the applicant that he or she has the right to submit evidence challenging the accuracy or rightfulness of the decision. The applicant is given at least five days to respond, and an additional five days to provide evidence.

The applicant must be notified in writing if the employer chooses to issue a final denial of the application, based on the conviction history. The final denial must include any existing employer procedures for challenging the decision or requesting reconsideration; and an explanation of the applicant’s right to file a complaint with the Department of Fair Employment and Housing.

The law does not apply to position for which a state or local agency is required by law to conduct a criminal history background check; positions with a criminal justice agency; a position as a farm labor contractor; and for positions where an employer 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.

Has Your City, County, or State “Banned the Box”?

“Ban the Box” laws have been adopted in over 150 city/county jurisdictions and by 29 states. Such laws covering employers in both the public and private sectors have been adopted in 15 major cities/counties—including New York, Los Angeles, Chicago, Philadelphia, Prince Georges County, San Francisco, Baltimore, and Seattle—and 10 states: Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont.

Contact TruView if you have any questions about how criminal records history searches are legally performed in your jurisdiction, at 888-869-8444.