Podcast: Play in new window | Download
In this installment of California Employment News, Ryan Abernethy and Nikki Mahmoudi provide an essential overview of California’s Fair Chance Act—also known as the Ban the Box law. Learn what employers need to know about using criminal history in hiring decisions.
Watch this episode on the Weintraub YouTube channel.
Show Notes:
Ryan: Hello, everyone, and thank you for joining us for this installment of California Employment News, an informative video and podcast resource offered by the Labor and Employment Group here at Weintraub Tobin. My name is Ryan Abernethy, and I’m a shareholder here at Weintraub Tobin. I’m joined here today with Nikki Mahmoudi, who is one of our great associate attorneys in the firm’s Labor and Employment Group.
We are here today to discuss a general overview of California’s Fair Chance Act or the Ban the Box law, which restricts employers’ use of criminal background checks for hiring decisions here in California. There are many features to this Ban the Box law, so this installment of the California Employment News will be a general overview and not an exhaustive review of all of its nuances. So, nick, you want to kick us off, and if you could briefly describe California’s Ban the Box law, and specifically got its name.
Nikki: Of course. As Ryan mentioned, here in California, the Fair Chance Act, otherwise known as the Banned the Box law, provides guidelines to employers on how to properly consider criminal history and employment decisions. Why is it called Ban the box. It’s because the law aims to remove the check box that was commonly included on job applications, which ask applicants to disclose whether they had a criminal record. The law requires employers with five or more employees, with a few exceptions, to to follow certain procedures when requesting and using criminal history information for pre-hired purposes. Specifically, regardless of the source of the criminal history information, employers must do the five following steps. The first, Two, is wait until a conditional job offer is made before asking applicants questions about criminal history or using criminal history information to inform their hiring decisions. Two, if the employer discovers the applicant has a conviction history, the employer must conduct an individualized assessment of the applicant’s conviction to determine whether it has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position. There are certain factors the ban the box law requires employers to consider in their individual assessments that we’ll discuss later.
Three, the employer must notify the applicant of any potential adverse action based on the conviction history. The notice must identify the conviction, include a copy of any conviction history report, regardless of the source, and state the deadline for the applicant to provide additional information such as evidence of inaccuracy, rehabilitation, or other mitigating circumstances. Four, the employer must give the individual at least five business days from the individual’s receipt of the pre-adverse action to respond to the employer’s preliminary notice. Now, if within Five business days, the applicant notifies the employer in writing that the applicant disputes the conviction history’s report’s accuracy and is taking steps to obtain evidence, then the employer must give the applicant an additional five days to respond. Five, the employer must consider all the evidence submitted by the individual and notify the applicant of any final adverse action, any existing procedure the applicant has to take to challenge the decision or request consideration, and the applicant’s right to file a complaint with the California Civil Rights Department. Ryan, can you tell us a bit about what type of positions are not restricted by the ban the box law, as well as what types of criminal records the employer can and can’t rely on?
Ryan: Sure. Thanks, Nikki. The ban the box law applies to not only outside applicants for employment, but also to existing employees who apply for or indicate a desire to be considered for a different position within their current employment. The law also applies as to existing employees who are subject to review when there is a change in ownership or management of a company. However, like you asked, Nikki, the law doesn’t apply to certain positions, including a position for which a state or local agency is otherwise required by law to conduct a conviction history background check. In addition, the law doesn’t apply to a position for a criminal justice agency. It doesn’t apply to a position as a farm labor contractor or to a position where an employer agent thereof is required by any state, federal, or local law to conduct criminal background checks. Some types of criminal records are categorically off limits to California employers. Unless the employer qualifies for very narrow exceptions, which we’re not going to get into today. The records that cannot be considered for employment decisions are the following. So any arrests that didn’t lead to a conviction, juvenile records, convictions that have been killed, dismissed, expunged, or statutorially eradicated pursuant to law, any referral to or participation in a pre-trial or post-trial diversion program.
And further, as of 2024, California law prohibits employers from requesting information about prior cannabis use from an applicant for employment or using any information obtained about prior use from a criminal background check to make hiring decisions. Employers should be careful if you have any blanket policies that you won’t hire anyone convicted of a certain crime. As Nikki mentioned, the ban the box law requires employers to conduct individualized assessments of the individual’s conviction history. There are certain factors that employers are required to consider if their individual assessments before making an employment decision based on the criminal history of that particular applicant. These include, first is the nature and gravity of the individual’s criminal history. Category, like the harm caused by the criminal conduct. The employer also has to consider the amount of time that has passed since the conviction. Third, they have to consider the nature of the job the individual is seeking. There must be a direct and adverse relationship with the specific duties of a job that justify denying the applicant the position. For instance, someone applying for an accounting position who is guilty of embezelment or check fraud a year ago, that would likely be a legitimate conviction to consider, given the close connection with the job duties and the character of the conviction.
So, Nikki, can you tell us how the ban of box law relates to other employment laws?
Nikki: Definitely. So all employers must make sure that any consideration of criminal history information that is not disparately impact individuals in a protected class, and that’s going to include race, gender, national origin, or other characteristics protected by law. When an employer wants to consider revoking the job offer, do not forget to consider that the applicant may belong to a FHA-protected class. When we’re talking about FHA, we’re talking about the Fair Employment and Housing Act. In fact, the ban the box law is part of that Fair Employment and Housing Act. If the applicant belongs to a protected class or discloses information during the application process that shows that the applicant might be in a protected class, consult with an attorney before you make your final decision to revoke the conditional job offer. Compliant with California’s many employment laws are definitely difficult, or they can be difficult. Additionally, some local governments, such as San Francisco and LA, have enacted their own versions of the ban the box law. These ordinances include other prohibitions and requirements related to obtaining and using criminal background history information. Employers covered by a local fair chance ordinance must comply with both state and local law.
The local ban the box ordinances in those jurisdictions often exceed the requirements found in the state’s ban the box law. So again, we encourage I encourage you to review your background check policies to ensure compliance and talk to counsel if you have any questions.
Ryan: Well, as you can see, I hope we made the message very clear that when it comes to considering criminal history with job applicants or your employees, it can be very complicated. Because of that, it’s always helpful to consult with counsel. And that’s it for this episode. You can continue to find our video series and podcast through thelelawblog.com or on Weintraub Tobin’s YouTube channel. So thank you everyone for joining us. And we look forward to reconnecting with the next edition of California Employment News.