California’s statewide “ban the box” law, in effect as of January 2018, makes it illegal for an employer with 5 or more employees to:
- Include on any application for employment questions that seek the disclosure of an applicant’s conviction history;
- Inquire into or consider the conviction history of an applicant until the applicant has received a conditional offer; and,
- Consider, distribute, or disseminate information related to specified arrests, diversions, and convictions when conducting a conviction history background check.
Individualized Assessments of Criminal History Required
The new law prohibits an employer from denying employment to an applicant based solely or in part on the applicant’s conviction history. Instead, employers are required to make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the job’s specific duties, and in making that assessment, consider all of the following:
- The nature and gravity of the offense;
- The amount of time that has passed since the offense and/or completion of the sentence; and,
- The nature of the job held or sought anytime a prospective employee with a prior criminal history is being evaluated.
Further, before denying employment based on conviction history, the employer must show some demonstrable relationship between the criminal history and the applicant’s ability to do the job, such as federal or state laws that prohibit employing persons with certain criminal records in the position.
Notification to the Applicant Required
An employer who makes a preliminary decision to deny employment based on the individualized assessment must provide the applicant with written notification of the decision.
The applicant must then be provided 5 business days to respond to that notification before the employer may make a final decision. If the applicant notifies the employer in writing that he or she disputes the accuracy of the conviction history and is obtaining evidence to support that assertion, the regulation grants the applicant an additional 5 business days to respond to the notice. The employer must consider the information submitted by the applicant before making a final decision.
If an employer makes a final decision to deny an application solely or in part because of the applicant’s conviction history, the employer must notify the applicant of all of 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.
These procedures do not apply to positions where state, federal, or local law requires criminal background checks, or restricts employment based on criminal history.
The Takeaways
In an effort to comply with the current law, all employers should begin by following a few simple suggestions:
- First, blanket polices against hiring applicants with criminal convictions without any real justification for such a policy will not stand unless required by state, federal, or local law. For any such policy to be upheld, it must have a real and tangible relationship to successful performance on the job and in the workplace and measure the person’s fitness for the specific job.
- Second, employers may want to consider adopting the following practices:
- Reconsider whether criminal background checks are beneficial to your business.
- Craft a narrowly tailored policy that demonstrates how the policy is job-related, consistent with business necessity, and includes an individualized assessment of employees and applicants.
- Conduct training for hiring managers and human resources personnel regarding the collection and usage of employees’ and job applicants’ criminal conviction histories.
- Consult with an attorney to ensure that applications, policies, and practices are consistent with state and federal law.
Regardless of the new regulations, employers can still never inquire about:
- An arrest or detention that did not result in conviction.
- Referral to, or participation in, a pretrial or post-trial diversion program.
- A conviction that has been judicially dismissed or ordered sealed, expunged, or statutorily eradicated pursuant to law.
