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.  Searching for employment with a criminal record is tough.  Consequently, 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, many employees and applicants have their Ban the Box rights violated every day. Continue reading for five things you must do if your employer or prospective employer violated your California Ban the Box rights.

1. Capture the Ban the Box Violation in Writing

This action is the most crucial step to take to preserve your ability to obtain justice for the employer’s violation of the California Ban the Box law. There are many ways an employer can violate the Ban the Box law. The most pervasive violation occurs where an employer asks applicants to list prior convictions and their criminal history. This is unlawful, and an employer violates the Ban the Box law by doing this. If your employer or prospective employer asks you about your criminal history on an application, contact Astanehe Law to act. Your Ban the Box rights have been violated, which give rise to actionable claims.

Other California Ban the Box law violations are more sophisticated and harder to prove. These include an employer performing a background check before making a conditional offer of employment, denying the applicant from employment without engaging in an individualized assessment, and not following the Ban the Box law’s strict notice and appeal requirements.

Often, employers may disqualify applicants with criminal histories verbally without confirming the reason for the denial in writing. Under Ban the Box, this is unlawful, and the employer must state that the disqualification relates to the applicant’s criminal history. So, if your employer only tells you are being denied employment due to your criminal history, ask them to put it in writing. If they refuse, send them an email confirming that they told you that the disqualification from employment was due to your criminal history. Save a copy for yourself and contact Astanehe Law for a consultation.

Additionally, California’s Ban the Box law requires the employer to provide at least five business days for a response to the initial notice of disqualification from employment. The employer cannot make a final decision before allowing the applicant to respond to the initial disqualification. If the employer does not provide at least five business days for your response, request adequate time to respond. IF the employer refuses, contact Astanehe Law for your consultation.

If you suspect that an employer is violating California’s Ban the Box law, make sure you capture the violation in writing. For additional information, Contact Astanehe Law.

2. Request That the Employer Engage in a Ban the Box Individualized Assessment

California’s Ban the Box requires employers that discover potentially disqualifying criminal history to perform an individualized assessment to ascertain whether disqualification from employment is justified. 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.

Under the Ban the Box law, the employer must perform this analysis with these factors. In writing, ask your employer if they performed the individualized analysis. Ask them to justify the disqualification using the elements stated above. If the employer refuses to answer or provides an insufficient answer, your California Ban the Box rights have likely been violated.

3. Respond to the Unlawful Disqualification from Employment in Writing

Applicants have the right to respond to an employer’s initial determination to disqualify a candidate from employment. Even where an employer doesn’t comply with the Ban the Box law – by failing to provide written notice of a denial due to criminal history – the applicant should always respond to disqualification due to criminal history and attempt to salvage their job.

To respond effectively, utilize the Ban the Box individualized assessment factors. Additionally, you should refute any inaccuracies in the criminal history report, which your employer must provide upon request. Be sure to respond in writing.

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4. Request Your Employee File in Writing

If you are an employee, you have the right to request your complete employee file. If the Ban the Box violation occurs during employment, request you complete employee file. The file may contain valuable information confirming the employer’s Ban the Box violation. Contact Astanehe Law for assistance related to obtaining your employee file.

5. Consider Legal Action for the Ban the Box Violation

Californians who suffer Ban the Box violations have a right to justice. Within three years of the employer’s violation, you must file an administrative charge with the Department of Fair Employment & Housing. The Department may choose to investigate the violation and award a penalty.

Alternatively, you have the right to file in court. In court, you can recover the full extent of your damages.  Still have questions?  Read our 2020 Ban the Box FAQ or contact Astanehe Law for your consultation to discuss your right to recover under the California Ban the Box Law.

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 your consultation. 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.