California Restricts Employer Use of an Applicant's Criminal History

Background

Over the last decade, a growing number of cities and states have adopted “Ban-the-Box” laws, which call for removal of the criminal history check box from employment applications and delaying inquiries about an applicant’s criminal convictions until later in the hiring process. The purpose of the “Ban-the-Box” movement is to remove the stigma of those with criminal convictions who have difficulty finding employment after serving their criminal sentence.

Existing California law generally prohibits asking a job applicant or an employee about (a) an arrest that did not lead to a conviction; (b) participating in a diversion program; and (c) minor marijuana offenses that are more than two years old. While some cities like Los Angeles and San Francisco had adopted “ban-the-box” ordinances, there was no state-wide prohibition on asking about criminal convictions for private employees.

Summary of the New Law

AB 1008, effective on January 1, 2018, covers all California employers with 5+ employees and goes beyond simply banning questions about criminal history from job application forms. Employers are now barred from inquiring into or considering a job applicant’s conviction history until after a conditional offer of employment has been extended. Criminal history inquiries may not be included on application forms or during interviews.

Once a conditional offer of employment has been made, the employer may inquire about the candidates criminal history (or run a background check), so long as the inquiries are limited to current pending arrests and misdemeanor and felony convictions that occurred within the last seven years.

If a criminal conviction gives a company concern about moving forward with the hire, AB 1008 now requires the employer to conduct an individualized assessment of whether the conviction has a “direct and adverse relationship with the specific duties of the job” that would justify revoking the job offer. In conducting this assessment, the employer must consider the nature and gravity of past offenses, how long ago the offenses were committed or sentences were completed, and the nature of the position sought.

If, after conducting this individualized assessment, the company decides to rescind the job offer, it must provide the applicant with (1) written notice of its decision along with the applicant’s right to respond to the written notice before the employer’s decision becomes final, (2) the specific criminal history that the employer took issue with, and (3) a copy of any criminal history obtained regarding the applicant. The employer must wait at least five days from the date of the notice before actually rescinding the job offer. If the applicant disputes the criminal history during the preliminary five-day period, they must be provided an additional five days to respond. Such response may include the submission of evidence challenging the accuracy of the conviction history or evidence of rehabilitation or mitigating circumstances.

Finally, if after reviewing an applicant’s response to the adverse action notice, the employer maintains its decision to deny employment, it must issue another written notice advising the applicant that their job offer has been rescinded and advising them of their right to file a complaint with the Department of Fair Employment and Housing.

California Employers Should…

…review employment application forms, job postings and recruiting procedures to eliminate any questions regarding an applicant’s criminal history.

…review recruiting practices to ensure that any background check or questions about criminal history are delayed until after a conditional offer is extended.

…work with external counsel to establish protocols for conducting individualized assessments and notifying applicants of adverse action, including drafting the required adverse action notices.