Over the last few years, we’ve seen an increase in “ban the box” legislation. Ban the box refers to employers forcing applicants to divulge information about criminal convictions before the employer even considers the applicant. Governor Brown recently signed legislation prohibiting employers from asking about criminal convictions before the employer makes an employment offer.
Why is Ban the Box Important?
According to AB 1008, “Roughly seven million Californians, or nearly one in three adults, have an arrest or conviction record that can significantly undermine their efforts to obtain gainful employment.” AB 1008 emphasizes the importance of employment in reducing recidivism, and the impact a job can have on formerly incarcerated persons and their families. The bill also cites experts who claim “that people with conviction records have lower rates of turnover and higher rates of promotion on the job.”
The EEOC previously determined that a blanket rule against hiring persons with criminal convictions has an adverse impact on persons of color.
Other Ban the Box Legislation
In 2013, the State of California passed a Ban the Box law passed that only applied to certain public employers. That same year five states have adopted fair chance hiring laws covering private employers. In 2015, President Obama directed all federal agencies to Ban the Box and refrain from asking applicants about their convictions on the initial job application.
Since then, 29 states and over 150 cities and counties have adopted a Ban the Box law. Over 300 companies have signed the White House Fair Chance hiring pledge. Nine states and 15 major cities, including Los Angeles and San Francisco, adopted fair chance hiring laws that cover both public and private sector employers. Over 20 percent of the United States population now lives in a state or locality that prohibits private employers from inquiring into an applicant’s record at the start of the hiring process.
California’s Ban the Box Law
Effective January 1, 2018, it is an unlawful employment practice for private employers with 5 or more employees “To include on any application for employment, before the employer makes a conditional offer of employment to the applicant, any question that seeks the disclosure of an applicant’s conviction history.”
Employers may not “inquire into or consider the conviction history of the applicant” until after the employer makes a conditional offer of employment.
Employers cannot “consider, distribute, or disseminate information” about arrests that did not result in a conviction, referral or participation in a diversion program, or “convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.”
What can an employer do? After making a conditional offer of employment, employers can conduct background checks. If the background check reveals a conviction, the employer can “make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.” In making the assessment, the employer must consider all of the following:
- The nature and gravity of the offense or conduct.
- The time that has passed since the offense or conduct and completion of the sentence.
- The nature of the job held or sought.
The employer can, but does not have to, “commit the results of this individualized assessment to writing.” It will be easy enough to create a criminal conviction consideration form for employers to use in their assessment.
What if the Employer Decides Not to Hire?
If the employer decides not to hire the applicant based on the criminal history, the employer must “notify the applicant of this preliminary decision in writing.” The notification must contain all of the following:
- Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer.
- A copy of the conviction history report, if any.
- An explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond.
The explanation must also advise the applicant that the applicant’s response can include evidence challenging the accuracy of the conviction history report. The applicant then has 5 days to respond to the notice. If the applicant notifies the employer in writing that the applicant disputes the accuracy of the conviction history report, then applicant gets an additional 5 business days to respond to the notice.
The employer has to consider the information submitted by the applicant before making a final decision. If the employer ultimately denies employment because of the applicant’s conviction history (even if that is only part of the reason), the employer must notify the applicant in writing of all the following:
- The final denial or disqualification. The employer may, but is not required to, justify or explain the employer’s reasoning for making the final denial or disqualification.
- Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration.
- The right to file a complaint with the Department of Fair Employment and Housing.
Exceptions to California’s Ban the Box Law
California’s Ban the Box law does not apply in any of the following positions:
- When a state or local agency is otherwise required by law to conduct a conviction history background check.
- Criminal justice agency positions under Penal Code Section 13101.
- Farm Labor Contractors under Labor Code Section 1685.
- Where an employer or agent thereof is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history.
The latter category could include:
- Home Care Organizations hiring home care aides;
- Childcare and Education services such as daycare workers, school staff
- Healthcare such as nurses, doctors
- Financial Services such as financial advisors, credit experts
- Government Workers such as police officers, mayors
- Some Information and Technology such as systems managers, computer analysts, that have access to private information.
Employers will need to rethink and modify their hiring practices and employment applications. The new law impacts every employer with more than 5 employees.
Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.
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