HR Compliance

California ‘Ban the Box’ Law to Take Effect Jan. 1

By

Jason Hines

| Nov 16, 2017

Last month, California Gov. Jerry Brown signed Assembly Bill 1008 (AB 1008), placing new restrictions on employers’ ability to make hiring decisions based on applicants’ criminal history. Effective Jan. 1, 2018, AB 1008 also limits when employers may ask applicants about that history.

Prior to this legislation, “ban the box” protections only prohibited state and local agencies from asking about conviction information before the applicant was determined qualified for the position. The new law extends the protections to all applicants applying to an employer in California with five or more employees.

Under AB 1008, consideration of an applicant’s criminal history is permissible only after the employer has made a conditional offer of employment. At that point, employers may not rescind the employment offer based on the criminal history until they have performed an individualized assessment.

Individualized assessments of an applicants’ criminal history

An individualized assessment is a process to justify denying an applicant a position by linking their criminal history to specific job duties. For example, if an employer is considering an individual for a cashier position, which would involve handling large sums of cash, the employer may determine a shoplifting conviction to be reason for disqualifying, because the conviction relates to specific job duties.

An individual assessment must consider:

  • the nature and gravity of the offense and conduct
  • the time passed since the offense or conduct and completion of the sentence
  • the nature of the job held or sought

Also, the employer must notify the applicant in writing once a preliminary decision is made. This notice is not required to contain a justification for the preliminary decision, but the employer must:

  • provide written notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer
  • include a copy of the conviction history report, if any
  • let the applicant know they have the right to respond to the notice within at least five business days
  • explain the candidate may submit evidence challenging the accuracy of the conviction record or present mitigating circumstances

During that five-day period, the employer cannot make any final hiring determinations based on conviction records. If the applicant responds, the employer must consider the information in the response before making a final decision.

California employers

AB 1008 contains a detailed process for California employers to follow when making employment decisions based on criminal history. Employers should review these changes and adjust policies and procedures accordingly to ensure compliance by Jan. 1, 2018.

Disclaimer: This blog includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer licensed in your jurisdiction for advice on specific legal problems.

About the Author

Jason Hines

Jason Hines is a Paycom compliance attorney. With more than five years’ experience in the legal field, he monitors developments in human resource laws, rules and regulations to ensure any changes are promptly updated in Paycom’s system for our clients. Previously, he was an attorney at the Oklahoma City law firm Elias, Books, Brown & Nelson. Hines earned a bachelor’s degree from the University of Central Oklahoma and his juris doctor degree from the Oklahoma City University School of Law, where he graduated cum laude. A fan of the Oklahoma City Thunder, Hines also enjoys exploring the great outdoors with his wife and daughters.

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