Recently, on October 14, 2017, Governor Jerry Brown signed Assembly Bill 1008 (“AB 1008”), which adds Government Code Section 12952 into state law. Among other things, this new provision makes it an unlawful employment practice under the Fair Employment and Housing Act (“FEHA”) for a private employer with five (5) or more employees to inquire about or consider a job applicant’s conviction history prior to a conditional offer of employment. This “ban-the-box” legislation is the latest in a series of initiatives nationwide to ban private employers from inquiring about convictions on an application for employment. California joins five other states, including Connecticut, Illinois, New Jersey, Oregon, and Vermont, in banning private employers’ inquiries regarding convictions prior to a conditional offer of employment. AB 1008 becomes effective January 1, 2018.
Only Post-Offer Consideration of a Conviction or Specified Arrests is Permissible. Most dramatically, employers may not ask an applicant about any conviction on an application for employment, or during any other phase of screening prior to an offer. Further, while an employer can still perform a criminal background check after an offer of employment is made, employers are required to conduct an “individualized assessment” of whether the applicant’s conviction has a “direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.” The employer must consider the factors that the U.S. Equal Employment Opportunity Commission laid out in its own guidance in 2012 regarding the use of convictions, specifically:
(1) the nature and gravity of the offense or conduct,
(2) the time that has passed since the offense or conduct and completion of the sentence, and
(3) the nature of the job held or sought.
Initial Notice Requirements. If an employer makes a decision to disqualify the applicant, after a conditional offer of employment, “solely or in part” because of his or her conviction history, the employer must notify the applicant in writing. The written notice must:
(1) give the employee at least five (5) business days to respond to the notice before the employer makes a final decision,
(2) identify the conviction that is basis for rescinding any job offer, and
(3) provide a copy of a conviction history report , if any.
Procedural Process for Applicants. If the applicant responds to the notice, within five (5) business days, that he or she disputes the accuracy of the report that was the basis of the preliminary decision, the applicant is given an additional five (5) business days to respond to the notice. Finally, the employer must consider the information submitted before making a final decision.
Final Notice. A final decision to revoke a conditional offer of employment must be accompanied by a notice in writing to the applicant, including the following: (1) the decision has become final, (2) any procedure to appeal or challenge the decision internally with the company, and (3) the right to file a complaint with California’s Department of Fair Employment and Housing.
In addition to new notice requirements and prohibitions, AB 1008 also makes it an unlawful employment practice under FEHA for an employer to engage in certain activities already prohibited by other legislation. For instance, employers may not consider arrests of an applicant (not leading to conviction) except for specific circumstances, such as arrests for which an applicant is pending trial and out on bail or his or her own recognizance, or those applicants with regular access to patients, who have been arrested for sexual offenses. Similarly, employers may not consider an applicant’s referral to or participation in a diversion program, or from considering convictions, which have been sealed, dismissed, or expunged.
As a consequence of AB 1008, employers may now be liable for the same damages under FEHA, as are available to those denied jobs or promotions on the basis of the protected characteristics under state law (e.g., race, gender, age, or sex). Employers who continue to use convictions as a screening tool face exposure to DFEH charges of discrimination and litigation.
An employer’s use of criminal convictions should be job-related, and consistent with business necessity, on a case-by-case basis. Employers should update their employment applications, policies, and practices, including any related human resources policies. Moreover, employers will need to establish notices that comply with AB 1008, if the employer uses criminal convictions to withdraw any conditional offer of employment.