Over the weekend, the Governor Brown added to the growing list of new employment laws to go into effect, including AB 1008, which is commonly referred to as the “ban the box bill.” AB 1008 prohibits employers with five or more employees from asking about a job applicant’s criminal history until a conditional offer of employment has been made. AB 1008 also makes it unlawful to consider or provide information about arrests not resulting in a conviction, referral to or participation in a diversion program, or convictions that have been sealed, dismissed, expunged, or eradicated by statute when conducting a criminal background check in connection with an application for employment.
You can read more about the specifics of AB 1008 in our previous eblast, available here. As we explained in that eblast, after making a conditional job offer to an employee and then receiving information on the applicant’s criminal history, an employer may still withdraw the conditional offer of employment based on criminal history. However, the employer must make an individual determination that the applicant’s conviction history has a “direct and adverse relationship” with the specific duties of the job that support denying the applicant the position. This means that an employer will need to be prepared to defend its decision to revoke an applicant’s offer of employment because of the applicant’s criminal history, including reasons why the conviction history matters in relation to the job the applicant would be performing.
The bill will become effective January 1, 2018.
COUNSEL TO MANAGEMENT:
Employers should review their employment applications to ensure that the application does not include questions about an applicant’s criminal history and should advise all employees responsible for hiring and interviewing that they may no longer ask about an applicant’s criminal history during the interview process. Additionally, if the Company does background checks, it will want to consult with its provider to make sure the Company does not receive any information which cannot be considered in determining whether to hire a candidate.
Moving forward, it will also be critical for employers to document the decision process as outlined by the statute. Specifically, any denial based on criminal history will have to be based on a “direct and adverse” relationship to the specific duties of the job. If you have any questions about what criminal history an employer may consider regarding prospective or current employees and their employment, contact the experts at The Saqui Law Group.