Employers Cannot Consider Applicant’s Conviction History

On January 1, 2018,  the California Fair Chance Act (AB1008) Ban The Box, became law. Making it illegal for California employer with five or more employees to include in their application for employment questions that inquire about an applicant’s conviction history. Additionally, the new law prohibits an employer from considering an applicant’s conviction history until after a conditional offer of employment.  Employers cannot consider, distribute, or disseminate information linked to arrests, diversions, and convictions. Find more information at ( https://disrupthr.co/city/san-francisco/ ).

Conditional Offer

Once the employer makes a conditional offer for employment,  the employer may run a background check or ask about an applicant’s conviction history. Additionally, an employer who attains an applicant’s criminal history and wants to rescind the job offer must conduct an individual assessment. The assessment should determine if the applicant’s conviction history has a direct and adverse relationship to the specific responsibilities, including:

  • The nature and gravity of the offense or conduct
  • The time that has passed since the offense or conduct
  • The conclusion of the sentence; and the nature of the job.

 

If The Applicant Is Disqualified

If the applicant’s conviction history is determined by the employer to disqualify them, the employer may elect to rescind the offer. However, the employer is obligated to inform the applicant in writing and permit them five days to respond; and include a copy of the conviction history.

If, and only after the applicant has had a chance to respond, the employer may still decide to not move forward with hiring the candidate. However, the employer must send a final written notice. Also, with the notice, specific pieces of information will be included: an “adverse action procedure.” The employer will need to send the candidate a pre-adverse action notice, a copy of the consumer report, a final adverse action notice and a summary of rights under the FCRA.