In 2013, California passed AB 218, the so-called “ban the box bill,” to impose certain limits on a public employer’s ability to consider or rely on criminal conviction histories of job applicants in hiring decisions. AB 1008 broadens the current “ban the box” law to apply to private employers.
Specifically, AB 1008 repeals the limited “ban the box bill” codified in section 432.9 of the California Labor Code and amends the FEHA to make it an unlawful employment practice for public and private employers with five or more employees to: (1) request disclosure of an applicant’s criminal conviction history on an employment application; (2) inquire into any applicant’s conviction history until after issuing a conditional offer of employment; or (3) consider or share certain information regarding arrests, participation in diversion programs, or certain enumerated convictions obtained during a criminal background check performed once a conditional offer of employment has been made.
Additionally, if an employer wishes to deny an applicant employment based “solely or in part” on an applicant’s conviction history, the employer must first: (1) perform an individualized assessment to determine whether the applicant’s conviction history has a “direct and adverse relationship with the specific duties” of the job for which the applicant is being considered; (2) give notice to the applicant of a preliminary decision to deny employment based on the conviction history; (3) allow the applicant time to respond to the notice and to provide evidence to dispute the accuracy of the conviction history; and (4) review and consider the evidence submitted by the applicant. If, upon review and consideration of the submitted information the employer makes a final decision to deny employment, the employer must provide the applicant with a written notice of its final decision.
Key Takeaway: These changes go into effect January 1, 2018. Accordingly, employers will need to take immediate affirmative steps to avoid liability. First, private employers will need to review and update their job application and interview forms and procedures to eliminate any requests for disclosures of criminal conviction histories. Second, employers will need to develop or update any background check authorization forms and procedures. Third, employers will need to create or update “adverse action” notifications and procedures.