AB 1008: Restrictions on criminal history inquiries

As of Jan. 1, 2018, Assembly Bill 1008 prohibits employers with five or more employees from inquiring into an applicant's criminal history until after they make a conditional offer of employment. Thus, the employer cannot run a background check or otherwise ask about the applicant's conviction history until after that conditional offer is made. Additionally, the employer cannot then deny the applicant the position based on any criminal history that is gathered unless and until it performs an individualized assessment and allows the applicant to respond. The law also prohibits employers from including questions on their job applications that seek the disclosure of the applicant's criminal conviction history.

Individualized Assessment

Employers that want to deny an applicant a position based on their criminal conviction history must be able to tie the conviction history to the specific duties of the job. The employer must also notify the applicant in writing and provide specific notices, after which the applicant must then be allowed at least five business days to respond plus an additional five days if the applicant disputes the accuracy of his conviction history. The employer must notify the applicant of its final determination and provide further notices, including that the applicant has a right to file a complaint with the Department of Fair Employment and Housing.

Further Implications for Employers

Unfortunately, the law does not provide any relief for employers from negligence liability, thus putting employers in an unfair situation. On the one hand, employers now face potential employment discrimination lawsuits for refusing to hire an applicant with a criminal conviction history. On the other, they may face a negligent hiring claim if they hire an applicant knowing their criminal history and that individual causes harm to a co-worker, customer or other third party.

Next Steps

Employers should begin by reviewing (1) all of their solicitations and advertisements for job openings; (2) their standard form applications; (3) their interview policies and procedures; and (4) their criminal record-based screening policies and procedures. Communication internally is also crucial: employers need to train all potential interviewers about the new law, the questions that they can and cannot ask and the individualized assessment.