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California Bans the Box

California Bans the Box


You've probably been seeing reference to it on the news, but what is "Ban the Box"?

While the phrase is intended to convey the idea of preventing employers from asking about criminal convictions during the application and interview process, it comes from the checkboxes located on applications that ask, "Have you ever been convicted of a felony?"

Now, a new California law, AB 1008, will "Ban the Box" by prohibiting most public and private employers with five or more employees from asking applicants about criminal conviction histories until after a conditional offer of employment has been made.

The new law will become effective January 1, 2018.

What Does this New Law do?

Existing law already prohibits state and local agencies from asking an applicant to disclose conviction information until the applicant is determined qualified for the position. AB 1008 extends this prohibition to all employers in California with five or more employees. The new bill will make it unlawful for California employers with at least five employees to:

  • Include on any application for employment any question that seeks the disclosure of an applicant's conviction history.
  • Inquire into or consider the conviction history of an applicant before the applicant receives a conditional offer of employment.
  • Consider, distribute, or disseminate information about the following discovered while conducting a criminal history background check in connection with any application for employment: an arrest that did not result in a conviction, referral to or participation in a pretrial or posttrial diversion program, and convictions that have been sealed, dismissed, expunged or statutorily eradicated pursuant to law.

What Happens When an Applicant's Conviction Record is Discovered?

Under AB 1008, consideration of an applicant's criminal history will be permissible only after the employer has made a conditional offer of employment. Once that offer has been made and the criminal history obtained, AB 1008 says that the employer cannot deny an applicant a position solely or in part because of conviction history until the employer performs an individualized assessment. This assessment must justify denying the applicant the position by linking relevant conviction history with specific job duties of the position sought.

The assessment would have to consider:

  • The nature and gravity of the offense and conduct
  • The time that has passed since the offense or conduct and completion of the sentence
  • The nature of the job held or sought

The law holds that the employer "may, but is not required to, commit the results of this individualized assessment to writing."

Denying a Job Based on Conviction History

Once you make the decision that the applicant's conviction history is disqualifying, you must notify the applicant of this preliminary decision in writing, but you don't have to justify or explain to the applicant your reasoning for making the preliminary decision. What you must do includes:

  • Provide written notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer.
  • Include a copy of the conviction history report, if any.
  • Let the applicant know that he/she has the right to respond to the notice within at least five business days, and that the response may include submission of evidence challenging the accuracy of the conviction record, or evidence of rehabilitation or mitigating circumstances or both.

You cannot make any final determination based on conviction history during this five day period. If the applicant notifies the employer in writing that he or she is disputing the conviction history and is taking steps to obtain evidence to support this, the employer must provide five additional business days to respond to the notice. The employer must also consider any additional evidence or documents the applicant provides in response to the notice before making a final decision.

If you ultimately decide to deny an applicant based on the conviction history, you must notify the applicant of this in writing, and include notification of any existing procedure the employer has to challenge the decision, as well as notification of the applicant's right to file a complaint with the Department of Fair Employment and Housing.

What Should Employers do Now?

Before January 1, 2018, you should carefully review your employment applications and hiring processes to ensure compliance with the law's requirements; specifically, not seeking or relying on criminal history information until after a conditional offer of employment has been made. If you wish to rely on criminal history information you will need to understand and follow the specific individualized assessment and employee notice requirements contained in the new law.

Please Contact Us with your questions or concerns about AB 1008.



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