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A.B. 1008, signed last year by Gov. Brown, enacted a new "Ban the Box" provision. This provision prohibits an employer from considering criminal history of a prospective employee until after a conditional offer of employment is made.

Under AB 1008, an employer is required to notify an applicant in writing and provide at least "five business days" to respond to a revocation of a conditional offer of employment based on its review of applicant's criminal history. To avoid disputes over the "five business days'," language, the FEHC is proposing that the "five business days" be calculated from the date of receipt of the notice by the applicant.

The proposal also adds the following language:

"If notice is transmitted through a format that does not provide a confirmation of receipt, such as a written notice mailed by an employer without tracking delivery enabled, the notice shall be deemed received five calendar days after the mailing is deposited for delivery for California addresses, ten calendar days after the mailing for addresses outside of California, and twenty calendar days after mailing for addresses outside of the United States."

AB 1008 also provides that an applicant may respond to a revocation of a conditional offer of employment by including evidence of rehabilitation and/or mitigating circumstances. The proposed regulation will attempt to specify this provision as follows:

"The types of evidence that may demonstrate rehabilitation or mitigating circumstances may include, but is not limited to: the length and consistency of employment history before and after the offense or conduct; the facts or circumstances surrounding the offense or conduct; and rehabilitation efforts such as education or training."

Although the employer has the right to make the final decision to deny employment, this provision requires that the employer consider all information submitted by an applicant before making its final decision.

Source: Fisher Phillips, 3/2/2018

Posted: April 6, 2018