California Bans the Box: Law Significantly Restricts an Employer From Seeking a Job Applicant’s Criminal History

From [HERE] 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.