California enforces a law known as "ban the box" that prevents employers with more than five employees from checking a job seeker's criminal record before extending a conditional job offer. An employer can't automatically turn you down after giving you a job offer just for having a conviction without first performing a personalized assessment.
Employers are also not allowed by California law to inquire about or take into account expunged criminal records. AB 1008, also known as the California Fair Chance Act, modifies the law in certain ways. It forbids employers from taking into account any criminal record, whether it has been erased or not, before issuing a conditional employment offer. This state statute applies to anyone convicted of a felony or a misdemeanor.
This blog further discusses how “Ban the Box” laws work in California.
Understanding California’s Ban the Box Laws
California's Fair Chance Act, sometimes called the "Ban the Box" Law, forbids employers from seeking information about a candidate's criminal background before making an offer for employment. This helps California residents with criminal records reintegrate into society. The Fair Employment and Housing Act also bans employers from using criminal records as a disqualifying factor in hiring. This is part of the Ban the Box provision, which aims to end the discrimination people with criminal records face when applying for jobs.
Before this law was enacted, many firms would ask applicants to answer questions about their criminal records as part of the job application process. Answers to these questions were often required before an applicant was considered for a job. These inquiries were used as a hiring process screening tool. As a consequence, job seekers with criminal records had a more difficult time getting hired.
Many counties and cities have implemented "ban the box" guidelines, forbidding employers from inquiring about a candidate's criminal past before making them an offer. This is in reaction to the frequency of businesses using criminal records as an assessment technique. Thus, an employer cannot inquire about a job applicant's criminal background in a written job application. Currently, over 180 counties and cities and 35 states have implemented "ban the box" principles.
Employers Covered by this Law
Ban the Box Laws affects all employers who have more than employees. It applies to employers in the public sector as well as the private sector. However, some positions have been exempted from this law, for example:
- Positions that require a background check by a government entity.
- Positions within criminal justice organizations as defined in Section 13101 of the California Penal Code.
- Farm labor contractor's positions, as defined under the Labor Code § 1685.
- Positions where it's a legal requirement for an employer to limit employment based on previous convictions or to perform investigations for hiring reasons.
According to Ban the Box laws, employers cannot:
- Ask about criminal past on an application before issuing a conditional employment offer.
- Before issuing a conditional employment offer, take into account or ask about a prospective employee's criminal background.
- Consider arrest details that weren't accompanied by a guilty verdict, participation in post or pre-trial diversion programs, or sealed, expunged, dismissed, or lawfully eradicated convictions.
Definition of Criminal History
Under ban-the-box laws, arrests that did not end in a guilty verdict are not considered criminal history—unless the candidate is applying for a position in healthcare that regularly requires access to medical patients, medications, and prescription drugs. In addition, a prospective employer has the right to enquire about specific arrests, even if the individual has been released on bond or is awaiting trial.
A Conditional Job Offer is Required Before an Employer Can Inquire About an Applicant's Criminal Record
According to Ban the Box guidelines, a hiring entity can only perform a criminal background check on a candidate after extending a conditional employment offer to them. The employer is required to do an individualized evaluation of the applicant's criminal past if they have one. Until the personalized evaluation has been completed, the employer can't disqualify the candidate for employment partially or solely depending on their background.
Under the personalized evaluation, the employer must evaluate the candidate's criminal past in light of the position's requirements and decide whether they should offer them a job. Unless the candidate's criminal background has a significant and unfavorable link with the responsibilities of the job that justifies the rejection, the employer can not decline employment. The employer must take the following things into account when conducting the personalized assessment:
- Nature and seriousness of the act.
- How much time has elapsed since the crime was committed or the sentence was served.
- The specifics of the position being sought.
Ban the Box specifies a mechanism for giving the applicant notification if the employer decides not to offer a job after conducting the personalized evaluation. A preliminary determination should be made in writing and the applicant should be informed about their disqualifying conviction. Although the employer has no obligation to give a reason for their decision, the notification should include the following:
- A statement of the guilty verdict(s) that constitute(s) the basis for the preliminary determination to retract the job offer.
- A background check copy, if available.
- A description of the candidate's ability to reply to the notice, including the deadlines by which the initial decision becomes official and when the applicant should reply.
The next step is for the employer to allow the candidate to reply. Ban the Box mandates that the candidate gets no less than five working days to respond to the notification of their exclusion from consideration for a position. To demonstrate their suitability for the job, applicants can either dispute the veracity of the background investigation or give details and evidence to support their claims.
Applicants have the right under the legislation to a further five-day extension if they request it in writing to the employers. Before making a final hiring decision, the employer has to consider the information provided by the candidate.
Ban the Box requires employers to give written notice of their choice to applicants. The notification has to contain:
- The final disqualification or denial.
- The process for challenging the decision, if any, or having it reconsidered.
- The ability to submit an inquiry with FEHA.
Employers that do not adhere to the above method are not permitted to rescind an offer of employment or dismiss an employee.
Disclosable Convictions to Potential Employers
The recently enacted "ban the box" legislation has a few exceptions. The following jobs are exempt from the law:
- A post for which an entity at the state or municipal level is mandated by the law to perform a criminal background check.
- A job in law enforcement or the criminal justice system.
- A job as a farm laborer.
- A position wherein federal, local, or state law requires an employer to carry out background investigations for employment reasons or to impose restrictions on employment due to a criminal past.
- Employers can additionally request information about criminal convictions following the extension of a conditional job offer.
Additionally, it is unlawful for an employer to make recruiting decisions based on prior criminal convictions that didn't result in a guilty verdict. Including:
- An arrest that does not result in a conviction (except when the matter is ongoing).
- Participation in or placement in a post- or pre-trial diversion program.
- Juvenile records.
- Sealed, dismissed, or expunged convictions.
California's Seven-Year Rule
Criminal background checks ordered by California employers after a conditional offer for a job position are only valid for 7 years (with limited exceptions). Because of this, employers are unable to disqualify you on the grounds of crimes that occurred more than 7 years ago since they won't appear.
Legal Action When Employers Disregard the Ban the Box Regulations
If a prospective employer inquires about your past convictions infringing on the new "Ban the Box" regulation, you could be eligible to file a lawsuit or complaint against the employer in question.
You could be entitled to claim financial compensation or an equitable remedy if you pursue a case against an employer who has discriminated against you because of a criminal conviction. If you were subjected to harassment or job discrimination because of your criminal history, you could be entitled to file a claim to:
- Get reimbursed for the legal costs incurred in filing the claim.
- Get your court expenses and legal fees paid for by the employer.
The Civil Rights Department (CRD) accepts complaints in three different ways:
- Filing the complaint online.
- Filling out your complaint form and mailing it to the Civil Rights Department at 2218 Kausen Drive, Suite 100, Elk Grove, CA 95758.
- Contacting the Civil Rights Department at (800) 884-1684.
The Civil Rights Department reviewed online job postings in 2021 and found over 500 listings having false claims like "applicants should have a clean record." The CRD subsequently sent letters to these firms requesting that they take down these unlawful remarks. It is worth noting that the Civil Rights Department is also providing a Fair Chance Act Toolkit to hiring firms to assist them in complying with the "ban the box" legislation.
FAQs About Ban the Box Laws
Below are some FAQS on the California Fair Chance Act:
Can a Prospective Employer Inquire About My Criminal Background During an Interview?
Employers aren't allowed to inquire about a criminal record during a job interview or at any other time before issuing a conditional offer for employment. This normally applies during:
- Initial interviews.
- Subsequent interviews.
- The last stage of the interview process, if a job offer has not yet been issued.
What Happens If I'm Offered a Position and the Employer Later Learns That I've Had a Conviction?
The employer has the right to impose conditions on employment once he or she issues a job offer. This involves passing the background investigation. If the potential employer learns about your past convictions, they could decide whether to hire you or disqualify you.
If a prospective employer issues a preliminary judgment not to hire you solely or partially because of a past conviction, the employer should first carry out an individual evaluation of you. Employers are required to give written notice if they reject an application due to your criminal background.
The written notification from the employer could, but need not, include a justification for their initial choice to reject your application.
However, the following information should be included in the written notice:
- The disqualifying convictions that served as the foundation for the initial employment verdict to withdraw the offer.
- Copies of the report detailing any prior convictions.
- Explanation regarding your legal rights to comment on the employer's initial decision before it is made final, as well as the due date for your feedback.
The description of your legal rights should let you know that you're allowed to offer up:
- Evidence that disputes the prior conviction report's findings.
- Proof of rehabilitation.
- Proof of mitigating factors.
Can I Respond to an Employer After They've Notified Me of My Ineligibility?
You are eligible to give feedback on a preliminary decision made by an employer to reject your application based on your criminal record. When an employer notifies you of their decision to reject your application, the notice should also outline your opportunity to give feedback before the determination becomes final.
Before the prospective employer can reach a final determination, you need to give feedback on the notification or a preliminary verdict to decline you within at least five working days.
If you give the employer a written notification within five days that the information on the prior criminal conviction report is inaccurate and that you intend to gather evidence to back up your claim, you can be given an additional five days to reply to the employer.
The employer needs to take into account both your feedback and any supporting documentation you provide before making a final verdict. Additionally, you might want to point out your skills, experience, education, and even volunteer work (if applicable) and attach reference letters.
Find a Record Expungement Lawyer Near Me
If you're having trouble finding work because of your criminal history, our team at Record Expungement Attorney in Los Angeles can help you fight for your rights. Additionally, our experts can assist you with expunging your criminal record to make it easier for you to find job opportunities. Our attorneys will look into your past convictions, determine whether you qualify for an expungement, and guide you through the steps of having them overturned. Call us at 424-286-1516.