By Anthony Amendola

On October 14, 2017, California Governor Jerry Brown signed Assembly Bill 1008  a “Ban the Box” law that significantly restricts an employer’s ability to seek or obtain information about a job applicant’s criminal history.  The California law is similar to laws that have been adopted in other jurisdictions, including New York City and the City of Los Angeles. California’s new law amends the California Fair Employment and Housing Act (“FEHA”), adding a new section, Government Code Section 12952, which prohibits all California employers with five or more employees from:

• Including on any employment application any question that seeks the disclosure of an applicant’s criminal conviction history; and
• Inquiring into or considering an applicant’s conviction history before he or she receives a conditional offer of employment.

The new law also reiterates existing prohibitions on considering, distributing or disseminating information about any of the following while considering an application for employment: (1) an arrest that did not result in a conviction, subject to certain exceptions; (2) referral to or participation in a pretrial or postrial diversion program; and (3) convictions that have been sealed, dismissed, expunged or statutorily eradicated pursuant to law.

Once an employer has made a conditional offer of employment to an applicant, it may make inquiries about the applicant’s conviction history and also may conduct a criminal background check. If the employer then intends to deny the applicant employment solely or in part because of his or her conviction history, then the employer is required to make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.  The individualized assessment must take into account: (1) the nature or gravity of the offense; (2) the time that has passed since the offense and completion of the sentence; and (3) the nature of the job held or sought.  The employer may memorialize in writing the results of the individualized assessment, but is not required to do so.

If the employer makes a preliminary decision that an applicant’s conviction history disqualifies him or her from employment, the employer must notify the applicant in writing.  The notification may, but is not required to, justify or explain the employer’s reasoning.  The notification must, however, contain all of the following: (1) identification of the disqualifying conviction(s) that are the basis for the preliminary decision to rescind the conditional offer; (2) a copy of the conviction history report, if any; and (3) an explanation of the applicant’s right to respond to the notice of the preliminary decision, including that the applicant may submit evidence challenging the accuracy of the conviction history report or evidence of rehabilitation or mitigating circumstances, and the deadline to respond.  The applicant must be provided at least five (5) business days to respond to the employer’s preliminary decision.  If, within that period, the applicant notifies the employer in writing that he or she intends to dispute the accuracy of the conviction history report and is taking steps to obtain evidence supporting this assertion, then the applicant must be provided an additional five (5) business days to respond.

If, after considering information submitted by the applicant, the employer makes a final decision to deny an application solely or in part because of the conviction history, the employer must notify the applicant, in writing, of the following: (1) the final denial or disqualification (the employer may, but need not, justify or explain its reasoning); (2) any procedure that the employer has for the applicant to challenge the decision or request reconsideration; and (3) the applicant’s right to file a complaint with the California Department of Fair Employment and Housing (“DFEH”).

Significantly, by adding these new prohibitions to the FEHA, the legislature makes the full panoply remedies available in a civil rights case, including economic, emotional distress and punitive damages and attorneys’ fees, available to those claiming violation of the new law.

ASK MSK

Q: What should a California employer with five or more employees do to comply with the new Ban the Box law?

A: California employers should review all hiring forms (e.g., job applications, offer letters) and procedures and, where necessary, eliminate any inquiries that would reveal criminal history information prior to making a conditional offer of employment.  In addition, no criminal background check should be conducted on any applicant until a conditional offer of employment has been extended.  If, after making a conditional job offer, the employer does inquire into an applicant’s conviction history, the employer must follow the steps set forth above if it elects to deny the applicant employment.  In addition, employers within the City of Los Angeles, the City of San Francisco or any other municipality that imposes additional “ban-the-box requirements,” must comply with such local laws as well.  For example, in Los Angeles, the employer must engage in a “Fair Chance Process,” which includes providing the applicant with a copy of its written assessment of why the conviction led to the rescission of the conditional offer of employment. Finally, those who utilize third party reporting agencies to conduct criminal background checks must coordinate with their background check vendors to insure that they also are complying with the federal Fair Credit Reporting Act and similar state laws, which impose notice, authorization and similar requirements before conducting a criminal background check. These laws also require that pre-adverse action and adverse action notices be provided in the event that negative information is discovered that may cause the employer to take adverse action, such as rescinding an offer of employment.

Q: How is the term “conditional offer of employment” defined under the new law?

A: The term is not defined.  While under some of the existing “ban-the-box” laws, a criminal background inquiry or check may not be conducted until all other contingencies have been completed (e.g., references, medical examinations, drug screening), the California law’s silence creates ambiguity. While presumably the law permits a “conditional offer of employment” to be made that is conditioned upon more than one post-offer contingency, unless the Fair Employment and Housing Council issues regulations defining this term, employers will need to wait until the term is interpreted by the courts before there will be clarity on this important issue.

Q: Are there any positions to which the Ban the Box law will not apply?

A: Yes.  California’s Ban the Box law does not apply to a position: (1) for which a state or local agency is required by law to conduct a conviction history background check; (2) with a criminal justice agency; (3) as a Farm Labor Contractor; and (4) for which an employer is required by local, state or federal law to conduct a criminal background check or to restrict employment based on criminal history. (For purposes of this provision, federal law includes rules or regulations promulgated by a self-regulatory organization as defined in Section 3(a)(26) of the Securities Exchange Act of 1934.)