California’s Ban The Box Law Takes Effect January 1, 2018

Get ready to update your employment applications and make changes to your hiring practices and policies. There are a slew of new laws passed by the California legislature that will take effect on January 1st, 2018. I’ll address each of the new major legislative updates in the coming days. This first one focuses on California’s “ban the box” statute.

The new California Government Code section 12952 provides that it will be an unlawful employment practice under the California Fair Employment and Housing Act (FEHA) for an employer with 5 or more employees to include on employment applications any questions that seek the disclosure of an applicant’s conviction history. It will also be unlawful to inquire into or consider the conviction history of any applicant until that applicant has received a conditional offer of employment.

Once an employer has made a conditional offer of employment, it may seek certain criminal history information. However, even after a conditional offer is made, it will be unlawful for an employer to consider, distribute, or disseminate information related to an applicant’s prior arrests not ending in convictions, participation in pre- or post-trial diversion programs, and convictions that have been sealed, dismissed, expunged or eradicated.

The law will require an employer who intends to deny an applicant a position solely or in part because of the applicant’s conviction history to make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job, and to consider certain topics when making that assessment.

The law will also require an employer who makes a preliminary decision to deny employment based on that individualized assessment to provide the applicant with written notification of the decision along with a notice of their rights under the law. The law will grant an applicant five 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 law grants the applicant an additional five business days to respond to the notice. The law requires an employer to consider information submitted by the applicant before making a final decision. An employer who makes a final decision to deny employment to the applicant must then notify the applicant in writing, along with a notice advising the applicant of their right to file a complaint with the Department of Fair Employment and Housing.

The law does not apply to positions where an employer 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.

If you operate in the cities of Los Angeles or San Francisco, additional requirements may apply as those cities have passed their own “fair chance” hiring laws which impose more restrictive obligations than required under the new California law.

Employer Action Items:

• Remove any questions related to criminal history from your employment applications.
• If you have written policies regarding hiring practices or pre-employment background checks, such as in your employee handbook, the policies should be updated to comply with the new law.
• Notify all persons in your organization who have the authority to hire personnel of their obligations under the new law so that they do not make hiring decisions that violate the law.
• Prepare or obtain a template for the written preliminary and final notices to applicants who are rejected for employment based on their conviction history.
• When in doubt as to whether you have grounds to deny employment based on an applicant’s conviction history, consult with qualified employment counsel before making an employment decision.