In 2013, the Governor signed AB 218 which “banned the box” on employment applications asking for criminal conviction information. AB 218 added Labor Code section 432.9 which prohibits state and local agencies from asking an applicant to disclose conviction history until the agency has determined the applicant meets the minimum employment qualifications for the job.
Last week, the Governor sign AB 1008 which repealed Labor Code section 432.9, but added requirements which go even further. Specifically, AB 1008 mandates the following:
- An employer is prohibited from inquiring or considering conviction history until after the employer has made a conditional offer of employment;
- An employer must make an individualized assessment whether a particular conviction has a direct and adverse relationship to the specific duties of the job that justify denying the applicant the position;
- If an employer makes a preliminary decision that the applicant’s conviction history disqualifies the applicant from employment, the employer must notify the applicant of the decision in writing, and provide the applicant at least five business days to respond (for example, disputing the accuracy of the conviction information);
- The employer must then consider the applicant’s response before making a final decision.
- Unlike AB 218, which added a section to the Labor Code, AB 1008 adds a section (§12952) to the Fair Employment and Housing Act in the Government Code. The legislative analysis states that the Department of Fair Employment and Housing will be charged with investigating and enforcing this new section.
- The biggest change here is the requirement of a Skelly-like opportunity to be heard before a final decision is made to reject an applicant based on conviction history.
- Criminal justice positions are largely exempted from this law, as are positions for which a state or local agency is required to conduct a background check.