Does California's State-Wide "Ban-the-Box" Put Employers In A Box?

by Nossaman LLP

Nossaman LLP

On October 14, 2017, Governor Jerry Brown announced that he had signed Assembly Bill 1008, which prohibits most California public and private employers from asking applicants about criminal conviction history until after a conditional offer of employment has been made.  This means that employers will have to remove “check boxes” or questions from employment applications regarding the disclosure of an applicant’s criminal conviction history (hence the phrase, “ban-the-box”).   This also means criminal background checks cannot be conducted prior to an employer making a conditional offer of employment.  The new law, which goes into effect on January 1, 2018, amends the Fair Employment and Housing Act, which covers all California employers (with very few exceptions) with five or more employees.

This follows a state-wide trend that has been building for some time.  In 2013, California enacted Labor Code section 432.9, which prohibited public employers from inquiring about criminal conviction history until the employer has determined that the applicant met the minimum qualifications for the job.1  Subsequently, the cities of Los Angeles and San Francisco enacted their own “ban-the-box” local ordinances that apply to private employers doing business in those cities.  And, in June 2017, we updated you on new regulations from the California Fair Employment and Housing Council that limit an employer’s ability to consider the criminal history of a job applicant or employee when making employment decisions.  The sponsor of AB 1008 stated that the intent of the bill is “to give applicants with a criminal record the opportunity to be judged on their qualifications and not their criminal histories.” 

What Does This Mean For Employers In California?

Assembly Bill 1008 makes it unlawful for a California employer to include any questions about conviction history on any application before a conditional offer of employment is made.  Employers are also prohibited from inquiring into or considering an applicant’s conviction history before extending a conditional offer of employment – this includes questions during the interview process and criminal background checks.  

Once a conditional offer of employment has been made, employers are permitted to inquire into conviction history.  However, in the event the employer decides to make an adverse decision (i.e., withdraw the conditional offer of employment), based on the applicant’s conviction history (in whole or in part), AB 1008 sets out specific steps that the employer must follow:

  1. Employers must make an “individualized assessment” of whether the conviction history has a “direct and adverse relationship” with the specific duties of the job justifying denial of the applicant for the position.  In doing so, the employer must consider (a) the nature and gravity of the offense, (b) the time that has passed since the offense or completion of the sentence, and (c) the nature of the job sought.
  2. Once the individualized assessment has been made, the employer must notify the applicant in writing that a preliminary decision has been made disqualifying the applicant from employment.  The notification must (a) identify the disqualifying conviction(s), (b) provide a copy of the conviction history report, if any, (c) explain the applicant’s right to respond before the preliminary decision becomes final (including the applicant’s right to provide evidence challenging the accuracy of the conviction history and/or evidence of mitigating circumstances or rehabilitation), and (d) provide a deadline by which the applicant must respond (no less than five business days after providing the notice).  In the notice, the employer may justify or explain its reason for making the preliminary decision, but it is not required to do so.  
  3. After providing the notice, the applicant must have a minimum of five business days to respond before the employer may make a final decision.  The applicant’s response may include submission of evidence challenging the accuracy of the conviction history and/or evidence or mitigating circumstances or rehabilitation.  In the event the applicant notifies the employer that he or she disputes the accuracy of the conviction history and is obtaining evidence to support that dispute, the applicant must be provided five additional business days to respond to the notice.  
  4. If the employer’s final decision is to deny employment, the employer must notify the applicant in writing.  The notice must notify the applicant of (a) the final decision, (b) the employer’s procedure (if any) for the applicant to challenge the decision or request reconsideration, and (c) the right to file a complaint with the Department of Fair Employment and Housing.  Again, the employer may justify or explain its reason for making the final decision, but it is not required to do so.   

In the event an applicant files a lawsuit based on a perceived violation of AB 1008, the applicant may sue for the full range of damages available under the Fair Employment and Housing Act, including compensatory damages and attorney’s fees and costs.

Which Employers Are Covered By The New Law?

Assembly Bill 1008 covers all California employers with five or more employees.  Only the following positions are exempted: (1) positions for which a government agency is required by law to conduct a conviction history background check; (2) positions with criminal justice agencies; (3) Farm Labor Contractors (as defined by the Labor Code); and (4) positions for which a state, federal, or local law mandates that an employer conduct a criminal history background check for employment purposes, or restricts employment based on criminal history.

Employers should note that local “ban-the-box” ordinances (such as those in Los Angeles and San Francisco) are not abrogated by AB 1008, and thus remain in full force and effect.   Local ordinances may place additional burdens on employers beyond the requirements of AB 1008.  For example, the Los Angeles ordinance requires employers to provide applicants a document setting forth the reasons for a preliminary adverse decision, which AB 1008 does not.

What Should California Employers Do In Response?

Employers should review their employment applications to determine whether they need to be revised or replaced before January 1, 2018.  Employers should also carefully review their hiring and interview practices, and make sure that employees interviewing applicants are familiar with  AB 1008.  Employers who intend to utilize criminal background checks after a conditional offer of employment has been made should revise or create written preliminary decision and final decision notices to comply with the requirements of the new law.   


1 With the enactment of AB 1008, Labor Code section 432.9 was repealed.

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.

© Nossaman LLP | Attorney Advertising

Written by:

Nossaman LLP

Nossaman LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.