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Ban the Box Update

Our colleagues at Ethos Human Capital Solutions reached out to the DFEH to obtain guidance on whether obtaining DMV records prior to making an offer is compliant with the law. The issue that was raised was that conducting a check of an applicant's driving record may reveal criminal history, such as DUI arrest or conviction but criminal hisotry may not be inquired about until after a job offer is made. According to the DFEH legal department, the law is clear that it doesn't apply to employers who are "required" to conduct background checks. To the extent an employer is required by law to conduct driving record checks - but who do so because, for example insurance carriers won't cover employees with certain driving records, may do so without following the procedures set forth in AB 1008, even though the driving record may also reveal criminal information. As long as employers are conducting the inquiry for the purpose of checking the driving record and not conviction history, the DFEH doesn't see that the inquiry would be improper under the law. If someone filed a complaint challenging such an inquiry, there would need to be a fact-specific determination about the purpose of the inquiry similar to the types of determination they routinely make in employment discrimination matters.

Categories: Legal Updates