This information is not intended to be legal advice. It is recommended that you speak with your Legal Counsel to ensure compliance with applicable law.
A few months back, AccuSource published an article about the many states and jurisdictions throughout the United States implementing Fair Chance/Ban the Box laws. The Ban the Box movement, which has gained a significant amount of momentum over the past few years, is aimed at increasing opportunities and eliminating discrimination for individuals with criminal records. And on October 14, 2017, one of the country’s largest states joined the movement – California.
On October 14, California Governor, Jerry Brown, signed Assembly Bill 1008 (AB 1008). The bill adds new state-wide restrictions to the California Fair Employment and Housing Act (FEHA). The restrictions focus primarily on an employer’s ability to make hiring decisions based on an individual’s criminal history. These restrictions come after California’s release of stricter regulations for the use of criminal records earlier this year, but further promote California’s reputation as an employee-friendly state.
According to the California Government Legislative Information website, under AB 1008, it is unlawful for employers with five or more employees to do the following:
- 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 until that applicant has received a conditional offer, and, when conducting a conviction history background check; or
- Consider, distribute, or disseminate information related to specified prior arrests, diversions, and convictions: (1) an arrest that did not result in a conviction, subject to the exceptions in Labor Code § 432.7(a)(1) and (f); (2) referral to or participation in a pretrial or posttrial diversion program; and (3) convictions that have been sealed, dismissed, expunged or statutorily eradicated pursuant to law.
Additionally, under AB 1008, an employer can only consider an applicant’s criminal history after a conditional offer has been made and a background check has been performed. Employers cannot deny an applicant a position before an individualized assessment has been performed considering the following:
- The nature and gravity of the offense and conduct;
- The time that has passed since the offense or conduct and completion of the sentence; and
- The nature of the job held or sought.
One of the final, key takeaways from AB 1008 pertains directly to pre-adverse and adverse action notices. If the employer makes a preliminary decision to disqualify an applicant based on his/her criminal history, the applicant must be made aware of this decision in writing. According to the Bill, the written notification must include the following:
- Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer.
- A copy of the conviction history report, if any.
- An explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond. The explanation shall inform the applicant that the response may include submission of evidence challenging the accuracy of the conviction history report that is the basis for rescinding the offer, evidence of rehabilitation or mitigating circumstances, or both.
Additional regulations and guidelines apply. More information about AB 1008 can be found here. AB 1008 directly affects background screening programs for most employers throughout the State of California, and will go into effect on January 1, 2018.
For more information about AB 1008 may affect your organization’s screening program, or AccuSource’s employment screening solutions, contact AccuSource today or reach us by phone at 888-649-6272.