AB 1008 Becomes Law in California

Assembly Bill (AB) 1008 is California’s extended Ban-the-Box law. It is an antidiscrimination employment law. I discussed the bill in Ban the Box and called for its enactment into law. The law is well intended but flawed. The reasoning behind Ban the Box is not complicated; it forces the removal of this question from job applications: “Have you ever been convicted of a felony?” Without the question, it was argued, formerly incarcerated people can be evaluated the same as other applicants, without immediately being tainted by having a felony record. While the good intent is there, I question whether the new law is enforceable.

Sometimes laws that read well go dormant. If a law is vague or difficult to enforce, it becomes an inert document. If all the charging orders of the Civil Rights Act of 1964, a federal civil rights and US labor law, could be fully enforced, segregation in public places would have ended and employment discrimination based on race, color, religion, sex, or national origin would have been banned long ago.

AB 1008 is an attempt to extend the nondiscriminatory employment hiring practices to another class of individuals that need special protection: formerly incarcerated people. But this expansion of rights can be simple subterfuge because there’s no real accountability for potential employers who decide not to follow the intent of the law.

When I last wrote about the measure, it had passed the California assembly on June 1, 2017, and was moving on for review by the state senate. Since then, on October 14, 2017, AB 1008 passed with senate approval, and on October 14, 2017, Governor Jerry Brown signed the bill into law effective January 1, 2018.

Highlights of AB 1008

AB 1008 makes it unlawful for California employers with at least five employees to do the following:

• Include on any application for employment any question that seeks the disclosure of an applicant’s conviction history
• Inquire into or consider the conviction history of an applicant until that applicant has received a conditional offer [of employment]
• 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 [subject to the exceptions].

(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.

The new law provides that examining an applicant’s criminal history will be permissible only after the employer has made a conditional offer of employment. Then, the applicant’s criminal history may be obtained.

Importantly, the law provides that the employer cannot deny an applicant a position solely or in part because of his or her conviction history until the employer has performed an individualized assessment. This assessment must justify denying the applicant the position by any linking relevant conviction history with specific job duties of the position being sought. In particular, the assessment would have to consider the following:

• The nature and gravity of the offense or conduct.
• The time that has passed since the offense or conduct and completion of the sentence.
• The nature of the job held or sought.

The new law provides that  “an employer may, but is not required to, commit the results of this individualized assessment to writing.”

Is This Law Enforceable or Monitorable?

I’m trying to imagine if these new policies, while they sound good, are practical. Will the hiring manager at the shop where I have my oil changed and tires rotated—who employs more than five people—follow the list of requirements before hiring a technician or mechanic? What stops him from doing a criminal background check before making a preliminary decision about job applicants? How would doing so be monitorable?

A hiring manager who makes a preliminary negative decision that an applicant’s conviction history is disqualifying is required to notify the applicant of that decision in writing. However, the law does not require the manager to justify or explain to the applicant his or her reasoning in making the preliminary decision. How is this enforceable?

If the applicant wants to appeal the employer’s decision, he or she has five business days to respond, and that response “may include submission of evidence challenging the accuracy of the conviction history report . . . [and] evidence of rehabilitation or mitigating circumstances, or both.”

Additionally, there are more steps to providing information that support the legality of the rejection of an applicant with a felony history. The process makes searching for a job an exercise in self-advocacy, and unemployed people don’t have time for administrative red tape.

The employer cannot make any final determination based on conviction history during the five business days the applicant has to respond. If during this time the applicant notifies the employer in writing that he or she is disputing the conviction history and taking steps to obtain supporting evidence, the employer must provide five additional business days to respond to the notice. Before making a final decision, the employer must also consider any additional evidence or documents the applicant provides.

If the employer ultimately decides to deny an applicant based on the conviction history, the employer must notify the applicant of this in writing and include “any existing procedure the employer has for the applicant to challenge the decision.” The employer must also notify the applicant of his or her right to file a complaint with the Department of Fair Employment and Housing.

Too Many Hoops, Not Enough Time

AB 1008 means well, but it is flawed. It contains gaping holes that give potential employers a silent pass that can and will eviscerate the law’s legislative intent.

Section 1(g) of the law states clearly and purposefully the intent to provide people with convictions a level employment playing field:

Experts have found that employment is essential to helping formerly incarcerated people support themselves and their families, that a job develops prosocial behavior, strengthens community ties, enhances self-esteem, and improves mental health, all of which reduce recidivism. These effects are strengthened the longer the person holds the job, and especially when it pays more than minimum wage.

However, section 2, which is  added to section 12952 of the Government Code, provides that

it is an unlawful employment practice for an employer with five or more employees 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. (Emphasis added)

I don’t believe the hiring manager where I get my car serviced will honor the intent and procedures of the new law. When those who are obliged to follow the law don’t, there is no law. Without oversight, there can be no broad enforcement.

According to the National Employment Law Project, in addition to California, twenty-nine states and more than 150 cities and counties have Ban-the-Box laws in place that remove a criminal conviction from the initial consideration of job applicants. It will be an interesting study to see if other states’ Ban-the-Box laws are working as envisioned.

Please share your comments and insights below.

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