California previously adopted ban-the-box for government employees in 2013 and in 2017 passed and signed a new law, AB1008. This means ban-the-box now applies to all employers in the State of California with more than 5 employees. The law will become effective on January 1, 2018
So when can a California employer seek criminal history?
Employers may seek criminal records after a conditional offer of employment has been made. They cannot ask the applicant or incorporate assistance from CRAs before that time.
What cannot be considered?
The law incorporates existing California restrictions regarding prohibited criminal records:
- Arrests or criminal charges without convictions.
- Referral to a pretrial and/or post-trial diversion program. The application of this restriction has been the subject of debate over the years as to whether these types of cases can be considered and reported if the person is in the diversion program but has not completed it? Arguments can be made that a participant in a diversion program may fail and end up with a conviction and in prison. However, it would seem that a failure, followed by a conviction would be reportable as a conviction in California and could be considered by an employer. Conversely, once completed successfully, and the charge is dismissed, an employer cannot consider it, but while the consumer is still participating has been the subject of debate.
- Sealed, expunged, or eradicated convictions.
Healthcare providers can consider some arrests without a conviction, including:
- Applicants and/or employees who have access to patients are subject to a sex offender review.
- Applicants/employees with access to drugs and medications are subject to review of drug related arrests.
There are a many offenses and different time periods for which an employer can consider arrests under certain sections of the law related to healthcare. If you are a California healthcare provider, it is critical that you become familiar with these very complicated rules.
Is anyone excluded from the new ban-the-box law?
The following employers are excluded:
- State and local government when a criminal background check is required for the position.
- Any position with the Criminal Justice Agency, §13101 Penal Code.
- Position as a farm labor contractor, §1685 Labor Code.
- Employers required by law or regulation to conduct a criminal background check.
So what is the employer’s obligation related to ban-the-box?
The employer must create individual assessments of each individual considering the following issues:
- nature and gravity of the offense
- how long ago the offense occurred, and
- nature of the job (job relatedness of the offense).
These are the regular EEOC standards, so nothing new for the employers to consider. The employer is not required to make or present to the applicant a written assessment.
Changes to the Pre-Adverse Notice for California’s ban-the-box
In addition to the FCRA requirements, the employer must identify the criminal record(s) that causes concern and the potential adverse action. The applicant/employee must have a minimum of 5 business days to respond. If the applicant/employee disputes the accuracy of the record within 5 days, then an additional 5 days are added to permit the dispute to be processed. This extension should be stated in the notice.
Changes to the Adverse Action Notice
If the employer makes an adverse action, then it shall notify the consumer. In addition to the FCRA requirements, the adverse action notice shall also include notice of any company rights to appeal or to challenge that decision and notice of the right to file a complaint online with the Department of Fair Employment and Housing, or by mailing the complaint to 2218 Kausen Drive, Ste. 100, Elk Grove, CA 95758. This means that California employers will need special pre-adverse and adverse action notice forms. There is nothing in California law that indicates these points could not be included in the FCRA notices. Further, the FCRA only sets forth minimum information required in the notices rather than required maximum language.
Status of City and Local Ban-the-box Laws
This law does not supersede any local law; therefore Los Angeles, San Francisco, etc. requirements are still in force.
Again, this law is effective January 1, 2018.