Employment Council in California Delivers Clarity on State's New Ban the Box Law

By Michael Klazema on 3/22/2018

Around the country, states and local municipalities have committed to ban the box legislation, which seeks to equalize opportunities in the job market for those with criminal histories. Few states have taken as large a step as California did when the state's governor Jerry Brown signed AB 1008, a statewide ban the box law. In many locations, these rules apply only to state or public employers. Under the new California law, all businesses that employ more than five people — including private companies — may not ask about or use criminal information during the application and interview process. Any company that wishes to conduct a thorough background check on an applicant must extend a conditional employment offer first. 

Per coverage, some uncertainty existed in the final legislative text, so the California Fair Employment and Housing Council met to issue clarification. They gave guidance on a rule that prompts employers who deny an applicant based on a background check to give the individual a chance to respond. This window begins when the applicant receives the report and extends to five business days afterward. The FEHC clarified how a denied applicant could petition for an appeal based on other circumstances, such as evidence of rehabilitation.

The FEHC addressed other issues with their proposed regulations, reports note, including several potential ambiguities in the state's new mandatory family leave law. This legislation, which provides maternity or paternity leave to employees in companies of 20 or more people, required fine-tuning to prevent confusion during implementation. The refinements center on definitions and specific cases.

The goal of the ban the box law is not to strip employers of their ability to choose who they hire but to ensure a level playing field so those who have paid their societal debt have a fair chance to re-enter the workforce. These new guidelines help to protect both employer and employee from unfair practices. As employers look to safeguard their businesses and customers from the negative effects of negligent hiring, thorough checks remain critical. makes it straightforward for an employer who has extended a conditional offer to proceed with a check of statewide databases, known aliases, and other important information.  For updates on the latest ban the box regulations read more on our ban the box page.

It is important to note that for right now, these proposals are just that: proposals. The FEHC will convene a meeting in early April to allow for public comment on these potential regulations, and the council must take a vote to deny or adopt the new rules. Signs currently point to the FEHC voting in favor of implementation. Employers in California should continue their efforts to remain in compliance.

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