"Ban-the-Box" Law Expanded to Private Employers

Payne & Fears

Assembly Bill 1008 broadens the current “ban the box” law beyond public employers to apply to private employers.

The new law makes it an unlawful employment practice for public and private employers with five or more employees to: (1) request disclosure of an applicant’s criminal conviction history on an employment application; (2) inquire into an applicant’s conviction history until after issuing a conditional offer of employment; or (3) consider or share certain information regarding arrests, participation in diversion programs, or certain enumerated convictions obtained during a criminal background check performed once a conditional offer of employment has been made. 

If an employer wants to deny an applicant employment based solely or in part on an applicant’s conviction history, the employer must first:

(1) perform an individualized assessment to determine whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job for which the applicant is being considered;

(2) give notice to the applicant of a preliminary decision to deny employment based on the conviction history;

(3) allow the applicant time to respond to the notice and to provide evidence to dispute the accuracy of the conviction history; and

(4) review and consider the evidence submitted by the applicant. If, upon review and consideration of the submitted information the employer makes a final decision to deny employment, the employer must provide the applicant with a written notice of its final decision.

Practical Implications

While the new law does not prevent employers from requesting and using criminal history information, employers need to review and update their job application and interview forms and procedures. Employers also need to develop or update any background check authorization forms and procedures, including adverse action notifications and procedures. In addition, employers should continue to have well-documented legitimate business reasons to deny employment based on criminal history.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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