Governor Brown has recently signed a “ban the box” employment bill into law. AB 1008 further restricts California employers’ abilities to use criminal records when making an employment decision. This not only affects your employment process and job application, but this amendment also affects your denial process (if based on the applicant’s criminal history).
Effective on January 1, 2018, this Fair Employment and Housing Act amendment prohibits employers from directly or indirectly inquiring into, seeking out, or considering an applicant’s conviction (or criminal) history until after the job applicant receives a conditional offer of employment. This includes questions on your job application.
AB 1008 also prohibits California employers from considering any of the following information while background screening a job applicant:
- Arrests not followed by a conviction (with exceptions)
- Referral or participation in a pretrial or post-trial diversion program
- Convictions that have been sealed, dismissed, expunged, or statutorily eradicated.
This bill only affects California employers with 5 or more employees, and does not apply to certain positions (like job positions with a criminal justice agency, a farm labor contractor, or any other position where conviction history is legally required).
This new employment law follows guidelines similar to the “fair chance” ordinances that have been enacted in Los Angeles, New York, and San Francisco. Based on those guidelines, employers will need to follow the following process on January 1, 2018 if they choose to deny an applicant based on their criminal history:
- Individualized Assessment
Once you decide to deny an applicant based on their criminal history, you must first perform an “individualized assessment” to determine if the conviction has a “direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.”
- Written notice
After the assessment, you will need to provide the applicant with a written notice detailing the decision and the conviction record it was based on. You will also need to provide a copy of the employment screening report and inform the applicant of their right to respond to the preliminary decision before that the decision is final (as well as the deadline to respond).
- 5 day waiting period (and 5 day dispute period)
Your job applicant will have 5 business days to respond in writing to the notice. Employers are required to consider any information that’s submitted before finalizing the decision. If an applicant opens up a dispute on the accuracy of the employment screening report, they will have an additional 5 business days (a total of 10) to respond.
- Final written notice
Once the decision is finalized, you’ll have to notify the applicant in writing of the final decision, your procedures for challenging the decision (if any), and the denied applicant’s right to file a complaint with the Department of Fair Employment and Housing.
Before the year is up you will need to revise your employment process to adhere to not only this bill but the recently passed AB 168. AB 168 prohibits California employers from asking job applicants what their previous salary history was, or to use that salary history to determine what salary to offer an applicant. Job applicants are, however, free to volunteer information on their prior pay and benefits, and if they do, employers may consider it.
Do you agree or disagree with this newly passed “ban the box” employment bill?
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