“Ban the Box” is a California milestone in employment protections and prevents irrelevant criminal history from negatively affecting prospective employees. This bill is also known as the California Fair Chance Act. Ban the Box effectively breaks down barriers preventing individuals with past convictions from entering the workforce. The rules and regulations surrounding Ban the Box have undergone amendments to increase employment rates for individuals with criminal histories.

Ban the Box: How and Why does it Affect Criminal History?

California legislature wrote Ban the Box, or the California Fair Chance Act, to prevent employers from requiring disclosure of past accusations that did not result in a conviction. The Fair Chance Act, with these directives, furthers the ability of individuals with past convictions to rejoin the workforce and garner the benefits that come with stable employment. Ban the Box has promoted the ability for formerly incarcerated individuals to become reintegrated into society, establish a steady income, and support themselves and their families following their accusation or fulfillment of court-ordered penalties.

The initial passing of Ban the Box only applied to state and local agencies. Before the amendment, the outline only prohibited state and local agencies from looking into a potential employee’s past convictions. It allowed private businesses and corporations to inquire into a potential employee’s criminal history. The passage of AB 1008 extends criminal history inquiry restrictions to all employers currently overseeing five (5) or more employees. Thus, the enactment of AB 1008 effectively opens more employment opportunities to ex-convicts or formerly incarcerated individuals. With this modified Ban the Box, California law may consider the denial of employment based on a past criminal conviction as workplace discrimination. If an employer provides a justified cause for the rejection of jobs, they may avoid this charge.

More on Assembly Bill 1008

Assembly Bill 1008 solidifies the above goals by deeming it unlawful to continue several employment application components or practices. This amendment prevents the required questioning of an applicant’s criminal history before a business offers a conditional employment contract. After issuing a conditional employment contract, employers can request a background check on the potential employee but only with written permission. Still, they cannot deny employment because of the applicant’s criminal history.

There is an exception to this protection if the potential employee’s criminal history jeopardizes their ability to complete their job to the desired standards. Additionally, AB 1008 outlines employers’ processes if they deny employment to an applicant. Specific guidelines are listed below.

What does Assembly Bill 1008 Entail for Employers?

AB 1008 prohibits California employers from using the following employment practices:

  • Including a criminal history question on an employment application before offering a conditional employment contract
  • Considering an applicant’s criminal history before a conditional offer of employment is given
  • Spreading or regarding any of the following information about an applicant for employment:
    • A past arrest that did not lead to a conviction
    • Any referral or participation in a court-ordered diversion program
    • Any sealed, dismissed, expunged, or statutorily eradicated crime conviction
    • Court orders or adjudications of a juvenile court

What if an Employer Dismisses an Applicant for Criminal History?

If an employer has already offered a conditional offer of employment and seeks to dismiss the applicant because of the now learned criminal history, AB 1008 outlines specific steps that employers must take. Thus, California requires employers to follow this process when choosing to disqualify an employment applicant because of their criminal history:

  1. The employer must notify the applicant as to why they are rescinding their conditional employment offer. This step requires employers to specify the applicant’s conviction(s) or components of their criminal history that led to the conditional employment offer’s rescission.
  2. The employer must issue a copy of the applicant’s conviction history report.
  3. The employer must remind the applicant of their right to respond to the notice within five (5) business days. These responses from applicants may include evidence of the following circumstances:
    • The conviction history report is inaccurate.
    • The applicant has taken steps to become rehabilitated since their conviction.
    • The applicant is reforming the situation or circumstance under which they committed the crime.
  4. If the applicant cannot produce evidence in the five-day window that AB 1008 prescribes, they can send a statement indicating that they are gathering adequate evidence. In this case, the applicant has five more days to send an official response with relevant evidence.
  5. Once the applicant submits an official response to the employer’s notification of application dismissal, the employer can send the applicant their final decision with the following components:
    • A statement of their final decision.
    • (Optional) An explanation behind their final decision
  6. A process for the applicant to submit, challenge or appeal the employer’s final employment decision or the process the employer used.
  7. A reminder that the applicant has the right to submit a hiring complaint.

How does Ban the Box Affect Workplace Discrimination?

Ban the Box prevents employers from fostering workplace discrimination by stopping their ability to inquire into a potential applicant’s criminal history and requires them to analyze each individual before denying them a final employment offer. The essence of workplace discrimination is when one restricts or changes to exclude professional opportunities and treatment due to attributes the employee cannot change and does not affect their ability to complete their job correctly. Though workplace discrimination usually pertains to bias due to sexual orientation, gender identity, race, national origin, or disability, Ban the Box introduces past unrelated accusations or convictions as part of workplace discrimination.

Are there any exceptions?

Though AB 1007 extends the Fair Chance Act, or Ban the Box, to all corporations and agencies with five or more employees, there are several exceptions to this prohibition or restriction on looking into a job applicant’s criminal background. The protections offered by AB 1008 do not apply to the following applicants:

  • Applicants to positions within local or state agencies where laws require a standard background check for all employees.
  • Applicants to positions listed under California Penal Code Section 13101:
    • Jobs with responsibility for the “apprehension, prosecution, adjudication, or correction of criminal offenders.”
    • Employment which requires accountability for the “collection, storage, dissemination or usage of criminal offender record information.”
    • Farm Labor Contractor positions, as defined in Section 1685 of the California Labor Code.
    • Positions that require responsibility for conducting criminal background checks on the local, state, or federal level.

California 7 Year Rule: Criminal History Dated Seven Years or Older

The California 7-Year Rule prevents employers from denying employment based on an applicant’s criminal background if the crime in question was committed and convicted over seven years prior. Regarding Ban the Box, employers cannot submit their final decision for an applicant’s employment status if their conviction history does not include suspect crimes within seven years of when the applicant submitted the job application.

Contact Pride Legal

If you or a loved one has been subjected to unjust employment discrimination based on criminal history, contact Pride Legal. We’ll get you in touch with an LGBT-friendly Employment Discrimination Attorney that meets your needs and preferences! To protect your rights, hire someone who understands them.

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