California extends its ’ban-the-box’ law
In October, California Governor Jerry Brown signed Assembly Bill 1008, prohibiting companies across the state from inquiring about a job applicant's criminal history prior to an offer of employment.
Existing California law forbids state and local agencies from asking an applicant to disclose conviction information until the candidate is determined qualified for the position. Known as "ban-the-box" legislation in reference to the box applicants are asked to check if they have previous convictions, California's new law amends the state's Fair Employment and Housing Act (FEHA) and expands ban-the-box to all employers with five or more workers. The law also extends current ban-the-box legislation on the books in 15 jurisdictions - including Los Angeles and San Francisco - to the entirety of the state.
Under AB 1008, a candidate's criminal background is only permissible after an organization makes a conditional work offer. Once that offer is made, the employer cannot deny an applicant work based on conviction history until an individual criminal history assessment is performed.
The assessment must link relevant criminal history with specific duties of the position being sought. In particular, the evaluation must consider the gravity of the offense as well as time passed and completion of any conduct-related jail time.
A candidate disqualified for employment based on their conviction history must be informed of the decision in writing. While an employer is not required to explain its reasoning during a preliminary hiring decision, it must include in the assessment a copy of the would-be hire's criminal background report, along with a notice stating that the applicant has a right to respond to the decision within at least five business days. An organization cannot make any final employment determination based on conviction history during the five-day period.
An organization ultimately denying an applicant due to past criminal convictions must provide this information in writing, as well as send notification of the job candidate's right to file a compliant with the Department of Fair Employment and Housing.
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