“Ban the Box” Legislation Goes State Wide by Jing Li

“Ban the Box” is an initiative promoted by civil rights groups to persuade employers to remove the check box that asks applicants about their criminal background. “Ban the Box” laws typically forbid employers from inquiring about an applicant’s criminal background until after a conditional offer of employment had been made.  In recent years, “Ban the Box” statutes have been enacted by municipalities such as Los Angeles, San Francisco, and New York.

Effective January 1, 2018, California’s “Ban the Box” Legislation [Assembly Bill No. 1008 (“AB 1008”)] will become effective state wide.

AB 1008 will amend the Fair Employment and Housing Act (“FEHA”) and will prohibit employers with five or more employees from inquiring about or considering an applicant’s conviction history, until a conditional offer had been given to that applicant.

AB 1008 also forbids employers from considering, distributing, or disseminating information related to an applicant’s arrest(s) not followed by conviction, referral to or participation in a pretrial or post trial diversion program, and convictions that have been sealed, dismissed, expunged, or statutorily eradicated.

Similar to the “Ban the Box” ordinance adopted in Los Angles, AB 1008 requires that employers follow a “fair chance” process before rejecting an applicant based in whole or in part on the applicant’s conviction history.

Individualized Assessment

The first step of the fair chance process is an individualized assessment of the applicant’s conviction history. The employer must assess whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job, which would justify denying the applicant the position.

Written Notice

Once the employer makes a preliminary decision that the applicant’s conviction history disqualifies the applicant, the employer must provide the applicant a written notice of the decision and include a copy of the conviction history. The notice must also explain the applicant’s right to respond.

Waiting Period

After receiving the written notice, the applicant will have at least five business days to respond, before the employer may make a final decision. If the applicant disputes the accuracy of the conviction report and informs the employer that the applicant is taking steps to obtain evidence, the applicant will have another five business days to respond to the notice.

Final Decision

The employer must consider information submitted by the applicant. If the employer makes a final decision to deny because of the applicant’s conviction history, the employer must provide written notice of (1) the final denial, (2) any existing procedure the employer has for the applicant to challenge the decision or request reconsideration, and finally (3) the right to file a complaint with the Department of Fair Employment and Housing (“DFEH”).

Remedies for applicants who suffer a violation of AB 1008 will include all remedies available under FEHA, which include compensatory damages (e.g. lost wages), possible punitive damages, and attorneys’ fees.  An applicant may also pursue other rights and remedies that the applicant may have under any other law, including any local ordinances.

We recommend speaking with your employment counsel prior to January 1, 2018 to ensure compliance with AB 1008.

***The information provided in this article is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.***