The 12 days of California Labor & Employment Series – Day 1 "Ban the Box"

It's the end of the year and while everyone is busy, employers in California should be aware of new laws and regulations that go into effect on January 1, 2018. In the spirit of the season, we are using the next "12 days of the holidays" to blog about one California law each day and the law's impact on California employers.

On the First Day, my Labor and Employment attorney gave to me - a partridge in a pear tree and AB 1008, otherwise known as "Ban the Box."

The City of Los Angeles passed a "Ban the Box" law that went into effect on January 22, 2017 and began being enforced on July 1, 2017. Following suit, California Governor Jerry Brown signed a statewide "Ban the Box" law into effect earlier this year. The law, AB 1008, applies statewide to all employers with five or more employees and goes into effect on January 1, 2018.  AB 1008 adds a new protected class under the fair employment and housing act (FEHA).

What can’t an employer do with regards to applicant’s criminal history beginning January 1? 

Employers will be prohibited from the following:

• Asking, either in writing or orally, an applicant about his/her conviction history into a conditional offer of employment is made.
• Considering, distributing or disseminating information regarding any of the following at any time: a) an arrest that did not result in conviction except in extremely limited circumstances; b) referral to or participation in a pretrial or post trial diversion program; or c) convictions that were sealed, dismissed or expunged.
• Refuse to hire, disfavor retaliate against an applicant for not disclosing pay history.
• Release the salary history of any current or former employee to an employer or prospective employer without written authorization.

What can an employer do with regards to an applicant's criminal history? 

Once a conditional offer of employment is made, the employer can run a background check. If the background check contains a conviction, the employer may consider the conviction in its hiring decision if there is a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position. The employer can consider the gravity of the offense, the time that has passed since the conviction and the nature of the job sought in order to determine if it there is a direct and adverse relationship.

The employer is able to rescind a conditional offer of employment if they believe the conviction has a direct and adverse relationship with the position sought. If the employer makes this preliminary decision, the employer must then notify the applicant of the decision in writing providing the disqualifying conviction that formed the basis for their preliminary decision to rescind the offer, provide a copy of the conviction history, if any, and provide an explanation of applicant's rights to respond to the notice of intent to rescind the offer before the decision becomes final. An applicant should be allowed a minimum of five business days to respond and dispute the accuracy of the conviction report. If the applicant responds, the employer then must consider any information the applicant submits before making its final decision. If the decision to rescind the job offer becomes final, the employer must then provide another written notification to the applicant including information on the appeal process and the applicant's right to file a complaint with the Department of Fair Employment and Housing.

Please note that AB 1008 does not apply to situations where employers, both public and private, are required by law to conduct criminal background checks or to restrict employment based on criminal history.

What do California employers need to do?

Review your job applications, posting and recruitment procedures to ensure not only that your business complies with AB 1008 but also that your staff is trained on what is allowed. Employers also will need to keep written records demonstrating that they have complied with the requirements of this law in case litigation ensues. Please also note that if you live in San Francisco or Los Angeles, you may have to provide greater protections and you must comply with the city law if it provides greater protection than the state law.