AB 1008 to “Ban the Box” for Employers Asking about Criminal History

Starting January 1, 2018, Californians with criminal histories will have a much easier time getting a job. This year, Governor Jerry Brown signed into law the so-called “Ban the Box” legislation, also known as AB 1008, which limits an employer’s ability to screen your criminal history before making a conditional employment offer. Supported by a vast body of research demonstrating the public safety and economic benefits of increasing employment opportunities for criminal offenders, AB 1008 received widespread support from both sides of the aisle.

Almost one-third of adults in California have a conviction or arrest on their criminal record that will show up on a background check. Until AB 1008 goes into effect next month, these eight million offenders face an uphill battle in seeking employment. Only government agencies and some employers situated in San Francisco and Los Angeles Counties are currently restricted from screening job applicants based on criminal history.

What Does “Ban the Box” Specifically Prohibit?

AB 1008 adds section 12952 to the Government Code – the Fair Employment and Housing Act (FEHA) – and repeals section 432.9 of the Labor Code. These new provisions will make it illegal for any employer with five or more employees to:

• Include any questions about criminal history on job applications
• Ask about or take into account your criminal history before making you a conditional job offer
• Consider your prior arrests or enrolment in a diversion program such as a deferred judgment

Once an employer decides that you are qualified for the position, and makes you an offer, they can look into your criminal history. When your background check returns records of a criminal conviction, the employer cannot reject you on this basis alone. Instead, the employer must assess how your criminal history might directly impact your ability to perform your job function. In deciding whether to hire you, the employer must consider:

• The type and seriousness of the offense
• How long it’s been since you offended and completed your sentence
• The responsibilities entailed by the new job

After completing this assessment, the employer may decide to withdraw its employment offer. The only legal way for them to do this is to provide you with a written notification containing the following:

• The specific criminal conviction that caused them to rescind the job offer
• A copy of your criminal history report
• An explanation of your right to respond to the rejection

The cancellation of your job offer is only preliminary. You will have five days to respond to and address their concerns about your criminal history. This initial response can buy you five extra days to provide evidence in support of your employment.

For example, you may be able to show that the criminal history report is inaccurate – it might include clerical errors, or a conviction that should have been expunged. Another way to respond to the preliminary rejection is to provide evidence of your rehabilitation (letters from past employers, community leaders, etc.) or factors that lessen the seriousness of your crime (it happened when you were young, you paid back the victims, etc.).

How a San Diego Criminal Defense Lawyer Can Help

At McElfresh Law, we know how a criminal conviction can hold you back from getting your life on track. If you are a prior offender looking for a job, we can help you clean up your criminal history by requesting the expungement of qualifying convictions. We can also look over your criminal record to ensure that it doesn’t contain clerical errors, and guide you through the process of correcting them.

If you are concerned about the effect of a prior conviction on your employment, call us today at (858) 756-7107 for a free and confidential consultation.