By: Michael Hopkins
If you’ve applied for a job, you’ve likely seen the box. Have you ever been convicted of a felony? For many people, this box is no big deal, you check no and you move on with the rest of the application. For those people with a criminal conviction, however, this box is much more than part of a job application—it can be the barrier to employment.
This is the position taken by the sponsors and supporters of AB 1008. Supporters point to stories of individuals with convictions being unable to find a job. They also point to studies in which employers say they would rather hire any other stigmatized group of people before formerly convicted people. AB 1008 supporters claim the felony conviction box on job applications allows employers to summarily deny jobs to a whole class of people without meeting them, without interviews, and without giving them a chance.
Assembly Members from northern and southern California came together to sponsor the bill; those members were: Assembly Members McCarty (D-Sacramento), Weber (D-San Diego), Holden (D-Pasadena), Gipson (D-Carson), and Reyes (D-Colton).
AB 1008 bans the conviction box from job applications. Any employer with five or more employees, including private employers, is prohibited from asking any question seeking disclosure of an applicant’s conviction history on a job application.
AB 1008 does more than just affect job applications; the bill also prevents employers from looking into or asking about an applicant’s conviction history until after a conditional offer of employment is made. In practice, this means that an employer cannot run a criminal background check on an applicant until the employer gives the conditional offer of employment. Basically, the employer says we want to hire you for this job, but we’ll first look into your background first.
The delaying of criminal background checks is designed to give all applicants, including those with conviction history, a chance to engage and build some rapport with the employer. Studies have demonstrated that formerly convicted people can explain their past convictions and highlight their positive qualities during an interview. This provision of AB 1008—the delaying of a criminal background check—is designed to give formerly convicted applicants that chance.
If after running the criminal background check the employer finds a conviction that causes it to believe the applicant should not be hired, AB 1008 imposes notification and procedural requirements on the employer. The employer must make an individualized assessment of whether the conviction history justifies rescinding the conditional offer. The employer must also notify the applicant and give them at least five business days to respond to the rescission. This response period may be extended another five business days.
The employer must consider any information submitted by the applicant before finalizing the decision. The employer must also notify the applicant if the rescission is finalized.
AB 1008’s opponents claim the bill adds delays and expenses to the hiring process. AB 1008 certainly adds steps to the hiring process, such as the notification requirements. Further delays and expenses can come in the form of the required individualized assessment.
Opponents also point to the bill’s impacts on employer liability. Employers can be sued by hiring a person with a violent history or tendencies who later injures or harms another. Employers reduce the chances of hiring these people by running background checks. By placing limits on background checks, the argument is that employers will lose this tool used to reduce liability.
Despite the opposition, AB 1008 made its way through the California Legislature. The bill passed both the Assembly and Senate and is now on Governor Brown’s desk. Governor Brown has until October 15, 2017 to act on the bill.
To learn more about AB 1008, check out my interview on “In Session,” a podcast from the University of the Pacific Law Review, here.
Michael Hopkins is a staff writer for the University of the Pacific Law Review and law student student at McGeorge School of Law in Sacramento.