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In September 2020, the California Department of Fair Employment & Housing (“DFEH”) published a Fair Chance Act: Criminal History and Employment FAQ.  The FAQ offers a brief review of California’s Fair Chance Act, codified at Government Code section 12952 and commonly referred to as Ban the Box, and reinforces California’s commitment towards ensuring employers recognize criminal history as a protected class under the state’s robust anti-discrimination statute, the California Fair Employment & Housing Act.

Fair Chance Act: Criminal History and Employment FAQ

While largely reiterating the law, the new FAQ offers clues as to how DFEH enforces California’s Ban the Box law by incorporating the California Fair Employment and Housing Council’s recently updated Ban the Box regulations.  For example, the FAQ specifies California’s Ban the Box Law applies to union hiring halls, labor contractors, temporary employment agencies, and client employers.  Conversely, California’s Ban the Box law does not apply to certain positions at health care facilities, farm labor contractors, positions with state criminal justice agencies, where the employer must restrict employment based on criminal history, or where the employer must perform a background check by law.  Notably, the FAQ clarifies that even where an employer is exempt from California’s Ban the Box law, using criminal history can be discriminatory where it adversely impacts an applicant based on another protected basis, such as race. Additionally, the FAQ indicates that an employer impermissibly inquiring into criminal history on an employment application may not use the employee’s failure to initially disclose criminal history as a factor in subsequent employment decisions, including disqualification from employment. Click here to read the unabridged DFEH Fair Chance Act: Criminal History and Employment FAQ.

DFEH Publishes Ban the Box Video Explainer

DFEH also published a short video explaining California’s Ban the Box law.  Click here to view the video.

DFEH Publishes Ban the Box Sample Forms

In addition to publishing a Ban the Box FAQ, DFEH also created several Ban the Box letters and forms, including a sample individual assessment.  However, DFEH only provides documents assisting California employers with California Ban the Box compliance.  California employees may obtain form letters from BanthBox.net by clicking here.

California Ban the Box Law

California’s Fair Chance Act protects people with criminal history applying for work.  Now, employers may not consider or ask about an applicant’s criminal history until after extending a conditional employment offer. Employers considering applicants possessing a criminal history must adhere to strict notice and disclosure requirements, including providing a written offer revocation due to criminal history with the right to appeal.  Further, California’s Ban the Box law prohibits employers from disqualifying an applicant due to criminal history without performing an individualized assessment to ensure the rejection is genuinely justified.  California’s Ban the Box law seeks to reduce barriers to employment for Californians with a criminal history. If you believe that your employer has violated California's Ban the Box law, contact Astanehe Law.  Astanehe Law represents California employees who suffered discrimination and retaliation due to criminal history.  Astanehe Law represents clients on a contingency fee basis.  Call us at (415) 226-7170 or email us at contact@astanehelaw.com.
Visit BantheBox.net for more information