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California enacts statewide “Ban the Box” law

The law will go into effect on Jan. 1, 2018, and will apply to employers in California with five or more employees.

Gov. Jerry Brown signed Assembly Bill 1008, which amends California’s Fair Employment and Housing Act to restrict employers’ ability to make hiring decisions based on applicants’ conviction records. The bill includes a “Ban the Box” provision that will bar employers including questions about criminal history on job applications and prohibit employers from considering an applicant’s criminal history until after a conditional job offer is extended.

If an employer intends to deny employment based on a prior conviction, the employer must first assess 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.” This “individualized assessment” must consider the nature and gravity of the criminal offense, the time that has passed since the offense and the completion of the sentence, and the nature of the job sought. The employer may (but is not required to) document the individualized assessment.

If the individualized assessment leads to a preliminary determination that the applicant’s conviction history is disqualifying, then the employer must provide the applicant with a written notice that goes beyond what the FCRA’s “pre-adverse” notice requires. Specifically, the written notice must identify the conviction at issue and include a copy of any conviction history report. Employers must also explain in the letter that the applicant has the right to respond to the notice within at least five business days with evidence disputing the accuracy of the record or evidence of rehabilitation or mitigating circumstances (or both).

Employers cannot make final determinations based on conviction history during this five business day period.

The law provides exceptions for certain positions, including:

  • positions for which government agencies are required by law to check conviction history;
  • positions with criminal justice agencies;
  • farm labor contractors as defined in the state’s labor code; and
  • positions where laws (e.g., SEC regulations) require employers to check criminal history for employment purposes or restrict employment based on criminal history.

Employers should review their hiring practices and policies, including their employment applications, to ensure they are in compliance with the new statewide law in addition to other any other local ordinances that may be applicable.

Source: Seyfarth Shaw LLP, 10/16/2017

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