Effective January 1, 2018, under California’s new “Ban the Box Law,” (AB 1008 – California Government Code § 12952) California employers may no longer screen out prospective job applicants with criminal histories, including convicted felons, except under the most limited of circumstances. Practically speaking, the new law effectively prevents employers from rejecting applicants based on their criminal history. Those who do may be subject to civil litigation for a form of employment discrimination.
During the hiring process, it’s common for employers ask about an applicant’s criminal history on a job application, or to perform a criminal background check, which may end the employment screening process all together. Under California’s new law, for all practical purposes, this screening practice is now prohibited.
How California’s Ban-the-Box Law Harms Employers
In January 2018, California’s ban-the-box law became active under the Amendments to California’s Fair Housing and Employment Act (FEHA). The FEHA now makes it illegal for private and public employers with five or more employees to ask about an applicant’s criminal background, including felony convictions, until after a conditional offer of employment is first made. Even for those employers who choose to conduct such a check after making such an offer, there are rigorous requirements an employer must satisfy if it chooses to withdraw an offer predicated on the applicant’s criminal background. The reality is that this new law discourages employers from conducting ANY criminal background check, before or after an employment offer is made. For those who wish to continue the practice, legal guidance will be required to conduct such activity in conformity with this stringent new law.
Employers Are Now Prohibited from ANY Pre-Employment Screening of Criminal History
With the new law in place, employers are required to eliminate criminal history questions that are commonly used on employment applications. Below is a sample employment application question that is now prohibited.
Have you ever been convicted of a felony? Yes or no?
Applicants aren’t required to answer “yes” or “no” to the above question anymore. Employers in California can’t ask about, research, or consider an applicant’s criminal background until a conditional offer of employment has been made.
In fact, if this question still appears on any employment application it may now be used as evidence of the employer’s intent to discriminate based on the applicant’s criminal history, in violation of the FEHA. Think about that for a second or two.
THE REQUIRED, ASSESSMENT PROCESS THAT THE EMPLOYER MUST COMPLETE TO JUSTIFY DISQUALIFICATION AFTER AN OFFER IS MADE
If the employer makes a conditional offer of employment, then it may ask about or consider an applicant’s criminal background. However, some criminal records, such as arrest records that didn’t result in conviction, are excluded from consideration as part of the hiring process.
Before an employer decides to deny employment based on an applicant’s criminal record, the employer is now required to perform a thorough assessment. By law, this assessment must determine whether the criminal record has a direct AND adverse relationship with the specific duties of the job that justify denying the applicant the position. (Cal. Govt Code § 12952(c)(1)(A). The employer must consider the following:
- The nature and gravity of the criminal offense or conduct
- The time that has passed since the offense/conduct and completion of the sentence, and
- The nature of the job held or sought.
Translation: Even if the Employer learns that it just made an employment offer to a convicted bank robber, the employer must still consider the above factors before it automatically withdraws the offer or ends the employment relationship. No, I’m not kidding, but wait, there’s more…..
Providing Notice to the Applicant of the Employer’s “Preliminary Decision” and the Applicant’s Opportunity to Respond – the New Requirement to Engage in an Interactive Process
If the employer makes a preliminary decision that the applicant’s criminal conviction history disqualifies the applicant from employment, the employer SHALL notify the applicant of this preliminary decision IN WRITING. The notice 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; and also
- Provide a copy of the criminal history report, if the employer has one; and also
- An explanation of the applicant’s RIGHT TO RESPOND to the employer’s preliminary decision within five business days before the decision becomes final.
- The applicant may challenge the information in the employer’s report, or provide sufficient evidence that weakens the impact of their criminal background check, or provide proof of completion of a rehabilitation program, or similar proof. The applicant must be given another five business days to give evidence in support of the applicant’s response – challenge to the employer’s preliminary decision.
But wait, we’re not done yet…………….
Notice to the Applicant of the Employer’s “Final Decision”
When the applicant has submitted their information, then the employer must consider all evidence before making a final decision. If the decision is to deny employment, the employer must submit written notice of that decision, which must provide all of the following:
- A notice of final denial or disqualification; and also
- Any existing procedure the employer provides for the applicant to challenge the decision or request reconsideration; and also
- Notice of the rejected applicant’s right to file a complaint with the California Department of Fair Employment and Housing (DFEH).
Employers May Never Consider These Criminal Records Pre-Employment
In the state of California, there are particular criminal backgrounds that are forbidden for employers to ask about or consider. The convictions are:
- Arrest records. Employers don’t have the right to discuss prior arrest records that didn’t result in conviction. However, employers can ask applicants about arrests that did result in conviction, or arrests that are awaiting trial.
- Diversion programs. Employers can’t ask about an applicant’s referral to or involvement in a pre-trial or post-trial diversion program.
- Sealed records. Employers can’t ask about sealed, expunged or eradicated convictions.
- Marijuana records. Employers can’t ask about non-felony conviction for marijuana possession that are at least two years old.
- Juvenile records. Lastly, employers can’t ask about an applicant’s juvenile record, such as arrest, detention, processing or adjudication in the juvenile court system. In fact, California doesn’t consider juvenile court decisions to be “convictions.”
WHAT’S THE BOTTOM LINE HERE? I’M GLAD YOU ASKED
What should be readily apparent to any California employer is that California no longer wants its employers to disqualify any applicant based on the applicant’s criminal history. Period. It’s completely prohibited before an offer is made. Once an offer is made, an employer must follow a very specific, interactive process with the applicant to deny the applicant employment based on the applicant’s criminal history. Further, employers will be required to prove that the applicant’s disqualifying, criminal history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position. This is a legal determination that follows a specific, legal procedure outlined in California Government Code § 12952. Most employers will not be prepared to conduct this form of rigorous analysis without legal assistance. I would caution against disqualification of any applicant, based on an applicant’s criminal history, without first obtaining legal guidance. Finally, all of the employer’s forms and handbooks will have to be updated in conformity with this new law and its onerous requirements.
If you have any questions about employer compliance with California’s employment and labor laws, please call California’s Employer Defense Attorney Clifton E. Smith at 888-780-4541.