November 1st, 2017 | Debbie Lamb, Sterling Talent Solutions
California Updates Ban the Box Law for Private Sector Jobs
There have been many changes in employment law in the last few months. A few states and cities, including California, Oregon and New York City, have passed legislation for banning salary history during the hiring process. The salary history ban was just one of the six major employment law updates that California will enact as of January 1, 2018. The second major update was an update to the ban the box law. California became the 10th state to require private sector employers to ban the box on employment applications removing the ability to ask about an applicant’s criminal history. In 2013, California passed a similar law which applied to public agencies at the state, county and city level. According to the Society for Human Resource Management (SHRM), “Nine states and 15 major cities, including Los Angeles and San Francisco, have adopted ban the box hiring laws that cover both public and private-sector employers.” 29 states and over 150 cities across the US have adopted ban the box laws and the numbers continue to grow.
Provisions of California Updated Ban the Box Law
(AB1008), an amendment to the California Fair Employment and Housing Act, has been updated to make it unlawful discriminatory practice for an employer with five or more employees to do the following:
- To include on an application for employment, or through any other means, any question that seeks an applicant’s criminal history before a conditional offer of employment
- To consider, distribute or disseminate information about arrests that did not result in a conviction, referral to or participation in a pre-or post-trial diversion program, or convictions that have been sealed, dismissed, expunged or statutorily eradicated by the law.
Under the new ban the box law, an employer must have made a conditional offer of employment before it is permissible to consider the applicant’s criminal history. After the job offer has been made and the criminal record checks have been obtained, the employer cannot deny an applicant a position solely or in part because of conviction history until the employer performs an individualized assessment. The assessment must justify denying the applicant the position by linking relevant conviction history with specific job duties of the position.
Individualized Assessment for Applicants
Prior to using criminal conviction history information to deny employment, an employer must 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. The employer may, but is not mandated to give the results of the analysis to the applicant in writing. The employer must consider the following factors:
- 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 position sought
Applicant Disqualification Under California Ban the Box Law
If after the individualized assessment, the employer makes a preliminary decision to disqualify an applicant, the employer must provide written notice of the disqualifying conviction that is the basis for the decision, a copy of the conviction history and an explanation of the applicant’s right to respond. The employer must include a notice that the applicant may submit evidence that the information is not accurate and or evidence of rehabilitation.
Applicants will have at least five days to respond to the employers’ disqualification notice. If the applicant responds in that time and states that they are obtaining evidence of either the inaccuracy of the criminal records report or evidence of rehabilitation, the applicant must be given an additional five days to obtain this information. If the applicant submits additional information, the employer must consider it before their final decision. If the employer ultimately decides to deny an applicant based on the conviction history, the employer must notify the applicant of this in writing, and include notification of any existing procedure the employee has to challenge the decision, as well as notification of the applicant’s right to file a complaint with the Department of Fair Employment and Housing.
There are job positions where the new ban the box law will not apply. They include:
- a position with a criminal justice agency
- a position as a farm labor contractor
- a position where an employer is required by any state, federal or local law to conduct criminal background checks or employers are required to restrict employment based on criminal history.
Review Hiring and Screening Processes
California employers should consult legal counsel and review their employment application, background screening and hiring processes because of the change to the employment laws. It is imperative to stay up-to-date on the latest human resources and background screening trends, laws and compliance standards, including changes to the ban the box laws. Sterling is here to help with your background screening and onboarding needs. Check out the compliance page on our website for the latest decisions that affect the employment background screening industry. For further information about background screening, download our Background Screening 101 eBook.
This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.