AB 1008 – Extends “Ban the Box” to All Employers and Delays Review of Applicant’s Criminal History until after Conditional Offer

Category: Public Agencies
Date: Dec 1, 2017 11:54 AM

Since 2014, California’s “Ban the Box” law has prohibited public employers from requesting or considering an applicant’s criminal history until after it has determined the applicant meets the minimum qualifications for the job. The prohibition is subject to certain exceptions, such as applicants for jobs with a criminal justice agency or where a background check is required by law.

AB 1008 extends “Ban the Box” to all California employers and adds additional limitations and processes. Most importantly, under AB 1008 an employer may not request or consider an applicant’s criminal history until after a conditional offer of employment is made. The employer must then make an individualized assessment of whether the applicant’s criminal history has a direct and adverse relationship to the specific job duties the applicant would perform. The employer must consider:

The nature and gravity of the offense, 

How long ago the offense occurred and

The nature of the job.

If the conditional employment offer is withdrawn because of the applicant’s criminal history, the employer must notify the applicant in writing, stating which convictions were relied on, attach a copy of the conviction report, and give the applicant five business days to respond before its withdrawal becomes final. Once the decision is final, the employer must send another written notice to the applicant.

All of the exceptions from the prior version of “Ban the Box” (Labor Code § 432.9) continue to apply under this new law. However, AB 1008 has now recodified these provisions from the Labor Code to the Government Code as part of the Fair Employment and Housing Act, granting the Department of Fair Employment and Housing (DFEH) authority to investigate and remedy violations.

Public agencies should update their hiring procedures to delay making a request for criminal history information until after a conditional employment offer has been made. They should also create a procedure for providing an applicant a notice and opportunity to respond in the event a conditional offer is withdrawn based on the applicant’s criminal history.

(AB 1008 adds Section 12952 to the Government Code and repeals Section 432.9 of the Labor Code.)

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