California Enacts “Ban the Box” Law for Private Employers

“Ban the Box” laws prohibit employers from asking about criminal convictions at all until much later in the hiring process. It has been widely believed in private employment in California and throughout the United States that, although one cannot ask an applicant about his arrest record on an application or in an interview, it was OK to ask about certain kinds of convictions, especially felonies. Those days came to an end in California as of January 1, 2018, when California’s new law went into effect. Under that law, an employer can only ask about conviction history as part of a written, conditional job offer. An employer may still withdraw the offer but has to provide written notice of a preliminary decision to do so, and an opportunity for the applicant to respond before making a final decision.

This kind of law is not new, in California or outside of it. California had in earlier years enacted laws prohibiting all employers from asking about juvenile convictions, and also prohibiting public employers from asking applicants about any conviction. According to the National Employment Law Project in an article published on April 20, 2018, 31 states and about 150 cities and counties across the United States have enacted some kind of “Ban the Box” law. California is the 11th State to apply such a law to private employers, joining Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, and Washington.

The phrase “Ban the Box” refers to the box on most employment applications which asks the applicant to check the box if they have ever been convicted of a crime, and (usually) provide further information about such convictions. Not only is it now forbidden in California to have such a question on the employment application, it is also illegal to ask about it during the interview. After a conditional offer of employment has been made, the applicant can be asked to disclose convictions. If, after receipt of a conviction history, the employer intends to rescind the offer, it must make an “individualized assessment” of whether the conviction(s) have a relationship with job duties that justify denying the position, considering the “(i) nature and gravity of the offense or conduct; (ii) The time that has passed since the offense or conduct and completion of the sentence; (iii) The nature of the job held or sought. The applicant must be notified of this “preliminary decision” in writing, but the employer does not have to disclose its “assessment.” The notice must identify the conviction(s), include a copy of the conviction history report, notify the applicant of the right to respond and provide further information, and the deadline within which to do so. The applicant must have five business days to respond, before the employer can make a final decision. The written notice of the final decision must inform the applicant of the decision but does not have to provide a rationale. It must also inform the applicant of any employer procedure to challenge the denial, and that the application can complaint to the DFEH.

What this means to you: Obviously, denying employment because of conviction(s) has become a much more formal process. Employers must ensure their employment applications do not contain any requests of applicants to disclose conviction history. Hiring managers must be aware of these new laws, and ensure that they, and others who are part of the hiring process, do not ask questions about convictions during the interviews. If employment is going to be denied because of conviction(s), the manager must involve her or his managers and HR in the decision-making process and document the reasons for the decision, even if that analysis isn’t provided to the applicant.

Help your employer meet its requirements under the law and FEHA regulations by contacting us today at 800-458-2778 and booking Managing Within the Law training for your supervisors and managers.

 

Posted 05-08-2018

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2018-05-08T22:05:59+00:00

About the Author:

Steve Duggan graduated from the Law School at the University of Notre Dame while on active duty in the Air Force. He has extensive experience representing management litigating cases of wrongful termination, employment discrimination, and sexual harassment. Steve also has experience in all phases of administrative litigation of unfair labor practice charges, and class and individual complaints of employment discrimination. He has been an instructor of seminars for supervisors and managers on labor management relations and other personnel issues, and for lawyers in basic and advanced trial advocacy courses. Steve came on board with Fair Measures in 1998.