New California Ban the Box provisions enacted

A statewide California ban-the-box law (AB 1008) went into effect on January 1, 2018. That law requires employers with five or more employees (subject to few exceptions) to:

• wait until after a conditional offer of employment is made to inquire about an applicant’s criminal history, which means asking the applicant directly whether the applicant have been convicted of a crime, ordering a criminal history background check, or making any other inquiry about an applicant’s criminal history;
• conduct an individualized assessment of an applicant’s conviction to determine whether it has a “direct and adverse relationship with the specific duties of the job that justify denying the applicant the position”;
• notify the applicant of any potential adverse action based on the conviction history, which must, among other things, identify the conviction at issue, include a copy of any conviction history report (regardless of the source), and state the deadline for the applicant to provide additional information, such as evidence of inaccuracy, rehabilitation or other mitigating circumstances; and
• after waiting the requisite time period, notify the applicant of any final adverse action, which must, among other things, describe any existing procedure the employer has to challenge the decision or request reconsideration and notify the applicant of the right to file a complaint with the Department of Fair Employment and Housing.

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