California "Ban the Box" Laws
(Assembly Bill 1008)


AB 1008, California's "ban the box" legislation, takes effect January 1, 2018. The law prohibits employers from inquiring into an applicant's criminal history before the employer has made a conditional offer of employment. After making an offer of employment, an employer cannot deny the applicant because of a conviction without making an individualized assessment.

California law still prohibits employers from asking about, or considering, criminal convictions that have been expunged. AB 1008 takes the law a step further. It bars employers from considering any criminal conviction, expunged or not, prior to making a conditional job offer. The law applies to both felony charges and misdemeanor charges in California

Below, our California employment law attorneys discuss the following frequently asked questions about criminal history and job applications:

If you have further questions after reading this article, we invite you to contact us at Shouse Law Group.

1. What is California's “Ban the Box” law?

A “Ban the Box” law is a law that is aimed at removing barriers to employment for individuals who have been convicted of a crime. “Ban the Box” laws prohibit employers from asking about an applicant's criminal record during the initial application process.

“Ban the Box” laws are intended to give ex-offenders the opportunity to have an employer evaluate the applicant based on the applicant's qualifications and not simply eliminated because the applicant has a criminal record.

On October 14, 2017, California Governor Jerry Brown signed Assembly Bill 1008 into law. Assembly Bill 1008 is for California's “Ban the Box” law, which will go into effect on January 1, 2018.1

With the passage of the bill, California joins a number of other states that have “ban the box” laws. A number of major cities, including Los Angeles and San Francisco, already have similar laws and some private employers have “ban the box” policies.2

California's “Ban the Box” law applies to private employers in the state with 5 or more employees.3 The law will prohibit employers from asking about a job applicant's criminal conviction history prior to making a conditional offer of employment.4

2. What criminal convictions can an employer ask about?

There are a number of exceptions to the new “ban the box” law. The law does not apply to the following positions:

  • A position for which a state or local agency is required by law to conduct a conviction history background check;
  • A position with a criminal justice agency;
  • A position as a Farm Labor Contractor; or
  • A position where an employer or agent is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history.5

In addition, employers can ask about a criminal conviction after the employer has extended a conditional offer of employment.6

An employer is also prohibited from considering other criminal history not ending in a conviction. This includes:

  • Arrest not ending in conviction (except for certain exceptions);
  • Referral to or participation in a pre-trial or post-trial diversion program; or
  • Convictions that have been sealed, expunged, or dismissed.7

3. Can the employer ask about criminal convictions during an interview?

Employers cannot ask about a criminal conviction during an interview, or at any time before making a conditional offer of employment.8 This includes during an initial interview, second interview, or final round of interviews if an offer of employment has not been extended.

4. When can an employer ask about criminal convictions?

Employers can ask about criminal convictions after making a conditional offer of employment. A conditional offer of employment is a job offer that is dependent on the employee meeting certain conditions. Those conditions could include a background check and check of the applicant's criminal convictions.9

After making a conditional job offer, an employer can ask about criminal convictions; however, the employer cannot automatically exclude an applicant just for having a criminal conviction. Instead, an employer that intends to deny an applicant solely or in part because of the applicant's criminal history is required to perform an individualized assessment of the applicant.10

An individualized assessment requires the employer to consider a number of factors to decide whether or not to hire an applicant. These factors include:

  • Whether the applicant's conviction history has a direct and adverse relationship with the specific job duties;
  • The nature and gravity of the offense or conduct;
  • The time that has passed since the offense or conduct and completion of the sentence; and
  • The nature of the job held or sought.11

The individualized assessment may be put in writing, but this is not required.12

5. What happens if the employer finds out about a conviction after you are offered a job?

After making a job offer, the employer can make the job conditional on meeting certain terms or conditions. This includes passing a background check. If the employer finds out about an applicant's criminal history, the employer can take that into consideration whether to accept the applicant or deny the applicant.

If an employer makes a preliminary decision to deny an applicant solely or in part because of the applicant's criminal history, the employer is required to perform an individualized assessment of the applicant, as noted above. If the employer denies the applicant based on the applicant's conviction history, the employer must notify the applicant in writing.13

The employer's written notification may, but is not required to, explain the employer's reasons or basis for making the preliminary decision to disqualify the applicant. However, the notification is required to contain the following:

  1. Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer;
  2. A copy of the conviction history report, if any; and
  3. An explanation of the applicant's right to respond to the notice of the employer's preliminary decision before that decision becomes final and the deadline by which to respond.

The explanation of the applicant's rights must inform the applicant that the applicant can submit evidence that challenges the information in the conviction history report, evidence of rehabilitation, or evidence of mitigating circumstances.14

6. Can I respond to the employer after they send a notice that I am disqualified?

An applicant has the opportunity to respond to an employer's preliminary decision to disqualify the applicant based on criminal history. An employer's notification of the decision to deny an applicant must also provide an explanation of the applicant's right to respond to the notice before the employer's denial decision becomes final.15

An applicant shall have at least five (5) business days to respond to the notice or a preliminary decision to deny the applicant before the employer may make a final decision.16

If the applicant notifies the employer within 5 days in writing that there are inaccuracies in the conviction history report and the applicant is going to obtain evidence in support of his or her position, the applicant shall have five additional business days to respond to the notice.17

Before the employer can make a final decision, the employer shall consider the applicant's response and any evidence submitted by the applicant.18

If the employer makes a final decision to deny the applicant based on the individual's criminal conviction history, the employer has to notify the applicant in writing. The employer may, but is not required to explain the basis for the final denial. The notice must contain the following:

  1. The final denial or disqualification;
  2. Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration; and
  3. The right to file a complaint with the California Department of Fair Employment and Housing (DFEH).19

7. What happens if an employer asks about my criminal history in a job application or interview?

If an employer asks about an applicant's criminal history in violation of the new “Ban the Box” law, the applicant may be able to file a complaint or lawsuit against the employer.20

An applicant filing a lawsuit against employment discrimination based on a criminal conviction may be able to seek money damages or equitable relief. Employees or applicants who have suffered employment discrimination or harassment based on a criminal conviction can also seek to recover the costs associated with bringing the lawsuit, and have the employer reimburse their expenses for attorney's fees and court costs.21

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For questions about California's “ban the box” laws, discrimination based on an applicant's criminal history, or to discuss your case confidentially with one of our skilled California labor and employment attorneys, do not hesitate to contact us at Shouse Law Group.

If you suffer from a criminal record, we can help you pursue other forms of post-conviction relief in California, including expunging criminal records, sealing juvenile records, destroying arrest records, reducing a felony to a misdemeanor, and early termination of probation

We have local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.


Legal References:

  1. California AB 1008 amends Fair Employment and Housing Act (FEHA) to add Government Code section 12952, effective date January 1, 2018.
  2. California AB 1008 (“(d) Nine states and 15 major cities, including Los Angeles and San Francisco, have adopted fair chance hiring laws that cover both public and private sector employers. Over 20 percent of the United States population now lives in a state or locality that prohibits private employers from inquiring into an applicant's record at the start of the hiring process.”)
  3. Fair Employment and Housing Act 12952 (“(a) Except as provided in subdivision (d), it is an unlawful employment practice for an employer with five or more employees to do any of the following: (1) To include on any application for employment, before the employer makes a conditional offer of employment to the applicant, any question that seeks the disclosure of an applicant's conviction history. (2) To inquire into or consider the conviction history of the applicant, including any inquiry about conviction history on any employment application, until after the employer has made a conditional offer of employment to the applicant.”)
  4. Same.
  5. Fair Employment and Housing Act 12952 (“(d) This section does not apply in any of the following circumstances: (1) To a position for which a state or local agency is otherwise required by law to conduct a conviction history background check. (2) To a position with a criminal justice agency, as defined in Section 13101 of the Penal Code. (3) To a position as a Farm Labor Contractor, as described in Section 1685 of the Labor Code. (4) To a position where an employer or agent thereof is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history. For purposes of this paragraph, federal law shall include rules or regulations promulgated by a self-regulatory organization as defined in Section 3(a)(26) of the Securities Exchange Act of 1934, as amended by 124 Stat. 1652 (Public Law 111-203), pursuant to the authority in Section 19(b) of the Securities Exchange Act of 1934, as amended by 124 Stat. 1652 (Public Law 111-203).”)
  6. Fair Employment and Housing Act 12952, footnote 3 above.
  7. Fair Employment and Housing Act 12952 (“(3) To consider, distribute, or disseminate information about any of the following while conducting a conviction history background check in connection with any application for employment: (A) Arrest not followed by conviction, except in the circumstances as permitted in paragraph (1) of subdivision (a) and subdivision (f) of Section 432.7 of the Labor Code. (B) Referral to or participation in a pretrial or posttrial diversion program. (C) Convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.”)
  8. Same.
  9. Fair Employment and Housing Act 12952 (“(b) This section shall not be construed to prevent an employer from conducting a conviction history background check not in conflict with the provisions of subdivision (a).”)
  10. Fair Employment and Housing Act 12952 (“(c)(1)(A) An employer that intends to deny an applicant a position of employment solely or in part because of the applicant's conviction history shall make an individualized assessment of whether the applicant's conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position. In making the assessment described in this paragraph, the employer shall consider all of the following: (i) The nature and gravity of the offense or conduct. (ii) The time that has passed since the offense or conduct and completion of the sentence. (iii) The nature of the job held or sought.”)
  11. Same.
  12. Fair Employment and Housing Act 12952 (“(c)(1)(B) An employer may, but is not required to, commit the results of this individualized assessment to writing.”)
  13. Fair Employment and Housing Act 12952 (“(c)(2) If the employer makes a preliminary decision that the applicant's conviction history disqualifies the applicant from employment, the employer shall notify the applicant of this preliminary decision in writing. That notification may, but is not required to, justify or explain the employer's reasoning for making the preliminary decision. The notification shall contain all of the following: (A) Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer. (B) A copy of the conviction history report, if any. (C) An explanation of the applicant's right to respond to the notice of the employer's preliminary decision before that decision becomes final and the deadline by which to respond. The explanation shall inform the applicant that the response may include submission of evidence challenging the accuracy of the conviction history report that is the basis for rescinding the offer, evidence of rehabilitation or mitigating circumstances, or both.”)
  14. Same.
  15. Fair Employment and Housing Act 12952 (“(c)(3) The applicant shall have at least five business days to respond to the notice provided to the applicant under paragraph (2) before the employer may make a final decision. If, within the five business days, the applicant notifies the employer in writing that the applicant disputes the accuracy of the conviction history report that was the basis for the preliminary decision to rescind the offer and that the applicant is taking specific steps to obtain evidence supporting that assertion, then the applicant shall have five additional business days to respond to the notice.”)
  16. Same.
  17. Same.
  18. Fair Employment and Housing Act 12952 (“(c)(4) The employer shall consider information submitted by the applicant pursuant to paragraph (3) before making a final decision.”)
  19. Fair Employment and Housing Act 12952 (“(c)(5) If an employer makes a final decision to deny an application solely or in part because of the applicant's conviction history, the employer shall notify the applicant in writing of all the following: (A) The final denial or disqualification. The employer may, but is not required to, justify or explain the employer's reasoning for making the final denial or disqualification. (B) Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration. (C) The right to file a complaint with the department.”)
  20. Fair Employment and Housing Act 12952 (“(e) The remedies under this section shall be in addition to and not in derogation of all other rights and remedies that an applicant may have under any other law, including any local ordinance.”)
  21. Fair Employment and Housing Act 12965 -- Unlawful Practices. (“(b) ... In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney's fees and costs, including expert witness fees.”)

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