What Employers Need to Know About “Ban the Box” (Assembly Bill No. 1008)

What Employers Need to Know About “Ban the Box” (Assembly Bill No. 1008)

By Kori Macksoud

This article was originally written for Stone | Dean's At Issue Newsletter. You can find the original & full edition of At Issue Summer 2017 here.

In California, nearly one in three adults have an arrest or conviction record that can significantly undermine their efforts to obtain gainful employment. Experts have found that employment is essential to reducing recidivism, that people with criminal records have lower rates of turnover and higher rates of promotion on the job, and that a potential employer’s personal contact with potential employees can reduce the negative stigma of a conviction by approximately 15%.

Assembly Bill No. 1008, more commonly known as “Ban the Box” was introduced in California in February 2017. Ban the Box aims to provide job applicants that have a criminal record with a more realistic chance at obtaining gainful employment by prohibiting employers from inquiring about an applicant’s criminal history until a conditional job offer has been made. Nationwide, 24 states and over 150 cities and counties have adopted Ban the Box laws. Nine states and 15 major cities, including Los Angeles and San Francisco, have adopted Ban the Box laws that cover both public and private sector employers.

In a nutshell, nationwide Ban the Box laws aim to prohibit employers from:

• asking any question on a job application about an applicant’s criminal history;
• asking about or requiring disclosure of the applicant’s criminal history during a job interview;
• independently searching the internet for criminal conviction information; or
• running a criminal background check before a conditional offer of employment has been made.

If, after a conditional offer of employment has been made, an employer decides to decline to hire an applicant with a criminal history, the employer must disclose the basis for its decision and follow a 10-day procedure allowing the applicant to respond and rebut the information. Under the “Los Angeles Fair Chance Initiative for Hiring” ordinance, this process is known as the “Fair Chance Process.” To comply with the Fair Chance Process, employers in Los Angeles must:

• Perform a “written assessment” that links the specific aspects of the applicant’s criminal history with the risks inherent in the duties of the position sought. In performing the assessment, an employer must “at a minimum,” consider the factors identified by the Equal Employment Opportunity Commission (e.g., conduct an individualized assessment) and follow any rules and regulations that may be issued by the Designated Administrative Agency (DAA) responsible for enforcement.
• Provide the applicant with written notification of the proposed action, a copy of the written assessment, and any other information or documentation supporting the employer’s proposed adverse action.
• Wait at least five business days after the applicant is informed of the proposed adverse action before taking any adverse action or filling the employment position.
• Consider information or documentation the applicant provides the employer pursuant to the Fair Chance Process, and perform a “written reassessment” of the proposed adverse action. If the employer still elects to take the adverse action after such reassessment, it must notify the applicant of the decision and provide the applicant with a copy of the written reassessment.

The Los Angeles Ordinance applies to all employers located or doing business in the city that employ 10 or more employees.