California’s Ban the Box Law, officially known as the California Fair Chance Act, assists Californians with conviction histories with re-entry into society by prohibiting employers from asking about conviction history before making a job offer. The Ban the Box Law seeks to remove the stigma associated with previous convictions and give all applicants a fair chance at securing employment by making the unlawful consideration of conviction history an unlawful employment practice under the Fair Employment & Housing Act (“FEHA”). Although California’s Ban the Box Law went into effect on January 1, 2018, confusion surrounding implementation and enforcement exist.  Remarkably, many employers have not complied.  Continue reading to learn how Ban the Box works in California!

Ban the Box: Employers Cannot Inquire About Criminal Records on Applications or During Pre-Offer Interviews

California’s Ban the Box law prohibits employers from asking applicants about their criminal records on written applications or during interviews conducted before the employer has made a conditional offer for employment. Employers cannot include questions inquiring about criminal convictions, arrests, or criminal matters on their applications.  Employers cannot ask candidates about these matters during pre-offer interviews. California’s Ban the Box law prevents employers from even informally asking about criminal records.  If you’ve applied for a job that asked about your criminal history, contact Astanehe Law today for a legal information call.

In addition to the aforementioned outright ban on criminal record inquiries, California’s Ban the Box law regulates how employers handle applicants with criminal records.  Employers must follow the following guidelines when considering an applicant with a criminal record.

Step One: Is the Employer Covered?

California’s Ban the Box law applies to employers with five or more employees. It covers both private and public employers.  However, certain positions are exempt from the law, including:

  • Positions where a government agency is required to conduct a conviction history background check;
  • Positions at criminal justice agencies, as described in Penal Code section 13101;
  • Positions as a farm labor contractor, as described in Labor Code section 1685;
  • Positions where an employer is required by law to conduct criminal background checks for employment purposes or to restrict employment based on conviction history.

Step Two: Employer Reviews Application & Makes a Conditional Employment Offer

California’s Ban the Box law prohibits an employer from considering criminal history before making a conditional employment offer.  Today, the employer must review the application, decide to make a conditional employment offer, and then investigate the applicant’s criminal history.  Only after the employer makes a conditional employment offer may the employer perform a criminal history check.

Step Three: Employer Performs a Criminal History Check

After making a conditional employment offer, the employer is permitted to perform a criminal history check.  However, if the applicant has a criminal record, the employer may not outright deny employment solely based on the criminal record.  Instead, California’s Ban the Box law obligates the employer to perform an individualized assessment regarding the applicant’s criminal record.

Step Four: Employer Must Perform an Individualized Assessment

Under the Ban the Box law, an employer’s individualized assessment must weigh the applicant’s criminal record against the position.  The employer can deny employment only where the applicant’s criminal record justifies a denial.  When performing the individualized assessment, the employer must consider the following factors:

  • The nature and gravity of the offense;
  • The time passed since the offense or sentence completion; and,
  • The nature of the job held or sought.

If, after completing the individualized assessment, the employer cannot justify disqualifying the applicant due to their criminal record, the employer may not rely on the criminal record to reject the applicant.  If the employer concludes that the criminal record disqualifies the employee from employment, California Ban the Box law requires the employer to provide the applicant an opportunity to appeal.

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Step Five: Employer Must Provide Notice of Preliminary Disqualification to Applicant

If, after completing the individualized assessment, the employer seeks to deny employment,  the Ban the Box law establishes a procedure for providing the applicant with notice and a chance to appeal.  The employer’s initial decision is not final, and the applicant can respond to the decision.  This provides the applicant with an opportunity to restore their employability.

As previously stated, the employer must make a written preliminary decision of the disqualification from employment.  Then, the employer must notify the applicant of the disqualifying conviction in writing.  The employer is not required to justify the decision, but the written notification must contain:

  • A notice of the disqualifying conviction or convictions supporting the denial;
  • A copy of the criminal history report utilized, if any; and,
  • An explanation of the applicant’s right to respond to the notification, containing the deadlines to respond and when the preliminary decision becomes final.

Step Six: Applicant Can Request Extension to Provide Response

Under California’s Ban the Box law, the applicant can request an additional five-day extension to respond.  To obtain the extension, the applicant must make a written request to the employer.

Step Seven: Applicant Responds to Employer’s Preliminary Decision

Under the Ban the Box Law, the applicant must be provided at least five business days for a response to the written notification of disqualification from employment.  The applicant should provide information and evidence demonstrating their fitness for the position, or dispute the accuracy of their conviction history report.  The employer must consider information submitted by the applicant before rendering a final employment decision.

Step Eight: Final Decision

Next, the employer must serve the employee with written notice of their final decision.  The notice must include:

  • The final denial or disqualification;
  • The procedure for reconsideration or to challenge the decision, if any; and,
  • The right to file a complaint with the Department of Fair Employment & Housing.

For more information about how to search for employment with a criminal record, click here.

Astanehe Law Knows Employee Rights

If the employer unreasonably decides to disqualify the applicant from the position, the applicant should reconsider filing a complaint with the state or taking legal action.  Employers who fail to follow the aforementioned procedure cannot revoke a job offer or terminate their employee.  If your employer or prospective employer has denied your Ban the Box law rights, contact Astanehe Law immediately for a legal information call.  You have rights, and Astanehe Law may be able to assist you.  Call us at (415) 226-7170 or email us at  Astanehe Law Knows Employee Rights.