Assembly Bill 218 ("AB 218"), codified as Labor Code section 432.9, went into effect on July 1, 2014. It will have a significant impact on a public agency's ability to initially use criminal convictions in the hiring processes before a determination has been made regarding whether the applicant meets the minimum job qualifications for the position. As a result, public agencies should closely review their current employment applications and overall hiring practices to ensure compliance. Below is a summary of AB 218 and how it can apply to your public agency.
The passage of AB 218 by the California legislature follows a nationwide movement to "ban the box," i.e., to eliminate practices of automatically disqualifying convicted criminals from employment by asking questions concerning criminal convictions on the initial job application. Advocates of "ban the box" laws are concerned that such automatic disqualification of convicted criminals may create a disparate impact on minorities. In addition, supporters of "ban the box" legislation have noted that many qualified applications are being rejected from job opportunities simply because of old or minor infractions irrelevant to the position they are seeking. In 1998, Hawaii became the first state in the U.S. to adopt a "ban the box" law. Since then, many states, counties, and cities, including Massachusetts, Minnesota, and Seattle, have also enacted "ban the box" laws. In California, nine cities and counties adopted "ban the box" prohibitions prior to AB 218 being passed. In addition, many private companies and individual agencies have also started to remove the criminal conviction "box" from job applications. However, AB 218 only applies to public agencies in California.
Overview of AB 218
AB 218 prohibits any state or local agency from asking a job applicant to disclose criminal convictions on the initial employment application until after it has determined that the applicant meets the minimum employment qualifications for the position. AB 218 does not prohibit public agencies from inquiring about criminal conviction information later on in the hiring process. Rather, it requires the public agency to refrain from doing so until it has determined that the applicant is qualified for the position.
Questions about an employee's driving record and/or driver's license do not necessarily violate AB 218. Administrative determinations made by the DMV are not criminal convictions. To the extent such information references criminal convictions, an agency should probably wait to ask the question until after minimum qualifications have been met. However, it is permissible to ask if an applicant has a valid driver's license as that question alone does not solicit criminal conviction information.
Exemptions from AB 218
AB 218 exempts the following job positions from the restriction on inquiring about criminal convictions:
Those job positions that are required by state law to have background checks conducted, including, but not limited to, Peace Officers, Court Employees, Prosecuting Attorneys, Public Defenders, Health Officers, Child Support Employee's, Child Care Providers, IHSS Workers, Park, Playground, Rec. Center Employees who supervise minors and Residential Care Facility EE's; and
Those job positions within a "Criminal Justice Agency," as defined by Penal Code section 13101, or to any employee working for a Criminal Justice Agency on a contract or loan basis. "Criminal Justice Agency" is generally defined to include any agency whose primary function is the apprehension, prosecution, and incarceration of criminal offenders, and to collect, record, and store criminal records.
The "Criminal Justice Agency" exemption is not well defined and can potentially be interpreted to include non-sworn employees who work with or for a Criminal Justice Agency. For example, it could potentially include clerical staff working for a Police Department. With that in mind, public agencies must make a risk assessment to determine and justify who can fall under this AB 218 exemption.
At the same, it should also be noted that firefighters ARE NOT required by law to undergo a background check and are not deemed to be working for a "Criminal Justice Agency" since they do not prosecute or apprehend criminal offenders. Therefore, AB 218 would apply to these positions.
Finally, Community Colleges and K-12 School Districts are also exempt from AB 218 as they are not in the statute's definition of state or local agency.
Common Myths about AB 218
Myth #1: "Because Our City Requires Background Checks for All Employees, We Are Exempt from AB 218"
False. Only those limited job positions specifically exempted by Labor Code section 432.9 are exempt from AB 218's requirements.
Myth #2: "AB 218 Means Our City Cannot Ask an Applicant About Criminal Convictions Until a Conditional Job Offer Has Been Made"
False. A public agency cannot make an inquiry about criminal convictions until the agency has determined the applicant meets the minimum employment qualifications. This can happen well before a conditional offer.
Myth #3: "AB 218 Prohibits the City from Considering a Job Applicant's Criminal Convictions At All in the Hiring Process."
False. A public agency can still take into account the same considerations regarding a job applicant's criminal convictions as before. The only difference is when the agency may consider such conviction information.
Practical Approaches to Compliance with AB 218
Revise Employment Applications: State and local agencies may need to revise hard copy and/or online application forms to remove or appropriately limit questions seeking conviction information for impacted positions. Employers should consider creating separate job applications for positions covered under AB 218 and positions exempt from AB 218. If your agency uses a third-party to screen applicants, ensure their screening process complies with AB 218. Here are some potential options agencies can use to revise their employment application process and implement AB 218:
Revision Option 1:
Modify initial job application to determine whether the applicant meets the minimum job qualifications. Then, provide a supplemental questionnaire asking the job applicant about criminal convictions after minimum job qualifications have been determined.
Revision Option 2:
Request criminal conviction information in the initial application, but seal/encrypt such information until later in the hiring process.
This option is very risky. Where an employer intends to continue asking about convictions on initial applications and shielding/encrypting information, the burden would be on the employer to establish that those who make hiring decisions were shielded from such information until after they first determined whether the applicant met the minimum job qualifications.
Make sure your agency is prepared for the implementation of AB 218. Also, remember that once you are able to ask for criminal conviction information in the hiring process, your agency must still follow the other restrictions regarding asking such information as set forth in Labor Code section 432.7 and 432.8. Labor Code section 432.7 generally prohibits inquiring about arrests not resulting in convictions and convictions that have been expunged from the record. Labor Code section 432.8 prohibits inquiring about any minor misdemeanor marijuana possession criminal convictions over two years old. Peace officer applicants are exempt from both Labor Code section 432.7 and 432.8.