On October 14, 2017, Governor Jerry Brown approved AB-1008. AB-1008 legislation attempts to reduce barriers to employment for people with conviction histories in an effort to decrease unemployment in communities with high numbers of people with conviction histories. AB-1008 came into effect on January 1, 2018 and makes significant changes to employment hiring practices.
In enacting AB-1008, the California Legislature determined that:
(1) Nearly one in three adults, roughly seven million Californians, have an arrest or conviction record that undermines their efforts to obtain employment.
(2) Employment is essential to helping formerly incarcerated people support themselves and their families and develops prosocial behavior, strengthens community ties, enhances self-esteem, improves mental health and overall, reduces the chances of recidivism.
AB-1008 further expands the “Ban the Box” legislation passed in 2013 and now makes it an unlawful employment practice for an employer (with 5 or more employees) to do any of the following:
(1) To include on an application for employment, before the employer makes a conditional offer of employment, 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.
(3) To consider, distribute, or disseminate information about any of the following while conducting a conviction history background check in connection with an application for employment:
(a) An arrest not followed by a conviction (with some 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.
AB-1008 further calls on employers that intend to deny an applicant a position of employment because of the applicant’s conviction history to make an individualized assessment of whether the conviction history has a direct and adverse relationship to the specific duties of the job. In making this determination, employers should consider (1) the nature and gravity of the offense or conduct, (2) the time that has passed since the offense and completion of the sentence, and (3) the nature of the job held or sought. Generally, the employer must inform the applicant in writing of the preliminary decision to deny employment and the applicant should be given a chance to respond.
It is clear that through AB-1008, the Legislature is responding to the high levels of unemployment faced by those with prior criminal convictions. AB-1008 provides greater protections to this population in an attempt to lower unemployment rates and expand employment opportunities.
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