California may be the next jurisdiction to implement statewide “ban the box” legislation. Assembly Bill 1008 made its way from the Assembly through the Senate, and now awaits action from Governor Jerry Brown.

Prohibition Against Pre-Offer Inquiries Regarding Applicants’ Conviction History

The bill would make it unlawful under California’s Fair Employment and Housing Act (“FEHA”) for an employer with five or more employees to inquire about or consider an applicant’s conviction history until the applicant has received a conditional offer of employment. Under the bill, an employer would be prohibited from:

  • Including on any employment application a question that sought disclosure of an applicant’s conviction history;
  • Inquiring into or considering the conviction history of the applicant, until after the employer has made a conditional offer of employment; and
  • Considering, distributing, or disseminating information relating to arrests that do not result in a conviction, diversion programs, or convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.

Process for Making Adverse Employment Decisions

Further, the bill regulates employers in their decisions to deny employment to an applicant based on his/her conviction history. If an employer intends to deny an applicant a position based entirely or partially on the applicant’s conviction history, it is required to complete an individualized assessment which analyzes the relationship between the conviction and specific duties of the position.  The applicant’s conviction history must bear directly and adversely on specific duties of the position such that denial of the position is justified.  The bill provides that as part of an individualized assessment, the employer must consider all of the following:

  • Nature and gravity of the offense or conduct;
  • The time that has passed since the offense or conduct and completion of the sentence; and
  • The nature of the job.

If after conducting an individualized assessment, the employer believes that the applicant’s conviction history disqualifies the applicant from the position, the employer is required to provide written notice of the employer’s preliminary decision to the applicant. Although not required, an employer may provide an explanation of its reasoning.  The notice must contain a copy of the conviction report, if any, and specified language which informs the applicant of the right to respond before the employer’s decision becomes final.

Before making a final decision, an employer must provide the employee at least five days to respond to the preliminary decision. If the applicant notifies the employer that he/she disputes the accuracy of the of the criminal history report and is taking steps to obtain evidence to support that assertion, then the applicant has five additional business days to respond.  The employer is required to consider information submitted by the applicant during this time period in reaching its final determination.

If an employer makes a final decision to deny an applicant a position for any reason related to the applicant’s conviction history (after engaging in individualized assessment, informing the applicant of its preliminary decision, and providing due time and consideration of an applicant’s response), the employer must provide written notice to the employee. The notice must include the following information:

  • Final denial or disqualification;
  • Any procedures or processes instituted by the employer to challenge the decision or request for consideration; and
  • The right to file a complaint with the Department of Fair Employment and Housing.

The bill does not apply to the following positions: (1) a position for which a state or local agency is otherwise required by law to conduct a conviction history background check; (2) a position with a criminal justice agency as defined by the California Penal Code; (3) a farm labor contractor as defined by the California Labor Code; and (4) a position where an employer is required by state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history.

This bill is part of a growing wave of protections for applicants and employees in California and the Cities of Los Angeles and San Francisco with criminal histories as described in our earlier article, available here.

Please contact your Jackson Lewis attorney to discuss these developments and your specific organizational needs.