Ban The Box California 2018 Means Employers Cannot Seek Criminal Record Until After Offer to Hire Applicant

Following San Francisco, Los Angeles, and other cities and states across the country, California has added a provision to the Fair Employment and Housing Act (FEHA) banning employers from asking applicants for criminal convictions before a conditional offer of employment has been made. See, San Francisco Employers Must Give Former Convicts a Fighting Chance (August, 2014); Ban the Box in the City of Los Angeles (January 2017).

Effective January 1, 2018, Government Code 12952 will prohibit California employers with five or more employees from making pre-offer inquiries concerning criminal background.

Initial Applicant Screening. An employer may not include questions on an employment application form, or otherwise inquire into or consider criminal conviction history before the employer makes a conditional offer of employment to the applicant.

Conditional Offer and Fair Chance Process. Once an employer makes a conditional offer, it may require the candidate to disclose criminal conviction information. Before reversing that offer to hire, the employer must assess the nature, gravity and timing of the applicant’s convictions, completion of any sentence, and how the convictions relate to the job being sought.

If on that review an employer decides to rescind the offer, it must notify the applicant in writing of that preliminary decision, the conviction(s) upon which that decision is based, and the applicant’s right to respond within five business days, along with a copy of any conviction history report. If within that time the applicant notifies the employer in writing that he/she disputes the conviction history, he/she may have an additional five days to obtain evidence before fully responding.

The employer must consider any information an applicant submits before making its final decision. Should the denial of employment stand, the employer must notify the applicant in writing of: (1) its final decision; (2) any procedure the employer has for the applicant to dispute the decision; and (3) the applicant’s right to file a complaint with the Department of Fair Employment and Housing (DFEH).

Banned Considerations. This new law prohibits an employer from considering most arrests that were not followed by a conviction, referral to a diversion program, and sealed, dismissed, or expunged convictions.

Exemptions from the Law. New section 12952 does not apply to certain government positions, hiring of farm labor contractors, and positions for which the law requires a criminal background check.

Repeal/Retention of Existing Law. The new law repeals Labor Code 432.9, which banned  state and local agencies from making criminal history inquiries while leaving in place Labor Code 432.7 which bans employer inquiries into arrests or detentions not resulting in conviction.

Affected California employers should review new section 12952 and what they must do to comply, including modifying employee applications and adjusting assessment and interviewing protocol, to ensure lawful inquiry into an applicant’s criminal history.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin

October 27, 2017