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Governor Jerry Brown signed Bill AB 1008 on October 14, 2017. The new law establishes a statewide Ban the Box policy for California.

What This Means for CA Employers

California-based employers will need to be aware of and compliant with all regulations that are included in the Ban the Box Law, which is known as AB 1008. This law:

• Prohibits California employers from including questions on job applications that ask if the person has a conviction.
• Stipulates that CA employers may only inquire about an applicant's criminal history or run a criminal background check after extending a conditional job offer.
• Bans employers from considering arrests that did not result in a conviction.
• Ban employers from considering convictions that were expunged, dismissed, statutorily eradicated or sealed.

How California Employers Should Consider Criminal Convictions

Employers will be permitted to check an applicant's criminal history after making a conditional job offer. If a criminal background check shows that the person has a conviction, then AB 1008 sets some regulations on how employers must proceed.

To start, the employer must perform an individualized assessment for each applicant. This involves considering the seriousness of an offense and how much time has gone by since the conviction occurred. Employers should also weigh the type of conviction against the type of job an applicant is seeking.

After assessing an individual, the employer may consider a pre-adverse action (potentially denying employment), but they must first complete the following steps:

• Inform the applicant that they have not yet, but might pursue the adverse action.
• Provide the person with a copy of their background check and their rights under the FCRA.
• Specify the conviction(s) that might cause the person to be ineligible for employment.
• Supply a copy of the conviction history report (if one exists).
• Let the person know they have the right to dispute the results of their background report and that they have five business days to provide written notification of their intention to dispute.

If an applicant notifies a potential employer that they wish to dispute their background check, then the employer must give the person an additional five business days to follow up.

When the pre-adverse process is complete, an employer may choose to deny employment based on a criminal conviction. The employer must first:

• Notify the applicant in writing about their decision.
• Provide a second copy of the applicant's rights under the FCRA.
• Inform the applicant, in writing, that they have the right to file a complaint.
• Offer a written document that explains the employer's policies for allowing an applicant to challenge a hiring decision or request reconsideration.
• Follow any other existing adverse action procedures.

Concerns and Exceptions

Concerns have been expressed about Law AB 1008. One is that the law might conflict with or contradict existing laws in California cities such as Los Angeles and San Francisco. This would make it difficult for employers in those areas to comply with all the laws that affect them.

There are exceptions for certain types of California employers. AB 1008 will not apply to employers that have fewer than five employees. It also won't apply to state or local agencies that are required to run criminal background checks on all applicants.

Otherwise, California's Ban the Box Law will cover public and private employers. It goes into effect on January 1, 2018. Prior to that date, California employers may wish to update their screening policies to make sure they will be compliant with AB 1008.

Remaining compliant with local, state and federal laws that cover hiring and background screening can be difficult. The highly-trained staff at Backgrounds Online keeps up with these laws and creates educational materials, internal controls and additional resources to help our customers with their compliance efforts. If you have questions about how we can help you, please contact us today.