California Bill Would Ban the Box from Applications and Delay Criminal History Questions until Job Offer

Written By ESR News Blog Editor Thomas Ahearn

Legislation introduced in California in February 2017 – Assembly Bill No. 1008 – would “Ban the Box” and prohibit employers in the state from including any question about an applicant’s criminal record on job applications or inquire into the conviction history of an applicant until that applicant has received a conditional offer. In addition, when conducting a criminal background check, the bill prohibits employers from considering, distributing, or disseminating specified information related to prior convictions.

AB No. 1008 would also require an employer who intends to deny an applicant a job because of a criminal record to make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job and notify that applicant if making a preliminary determination based on that individualized assessment to deny the applicant employment. The Ban the Box bill would make it an unlawful employment practice for employers to do the following:

• To include on any application for employment any question that seeks the disclosure of an applicant’s criminal history.
• To inquire into or consider the conviction history of the applicant, including any inquiry about conviction history on any employment application, until after the applicant has received a conditional offer.
• In conducting a conviction history background check in connection with any application for employment, to consider, distribute, or disseminate information on any of the following: (A) Arrest not followed by conviction. (B) Referral to or participation in a pretrial or posttrial diversion program. (C) Convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law. (D) Misdemeanor convictions for which no jail sentence can be imposed, or infractions. (E) Misdemeanor convictions for which three years have passed since the date of conviction or felony convictions for which seven years have passed since the date of conviction.

The Ban the Box bill requires an employer intending to deny an applicant a job because of their criminal history must make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position. The employer must consider the nature and gravity of the offense or conduct, time that passed since the offense or completion of the sentence, and nature of the job held or sought.

In making the individualized assessment, the employer shall be consistent with Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 issued by the U.S. Equal Employment Opportunity Commission (EEOC) in April 2012. If the employer makes a preliminary decision that the conviction history of applicants disqualifies them from employment, the employer shall notify applicants of this preliminary decision in writing that:

• Identifies the conviction item that is the basis for the potential denial or disqualification.
• Provides a copy of the conviction history report, if any.
• Provides examples of mitigation or rehabilitation evidence that the applicant may voluntarily provide.
• Provides notice of the applicant’s right to respond as described in this section, and time limit to respond.

Under the Ban the Box bill – which was introduced by Assemblymember Kevin McCarty (D-Sacramento) – the applicant shall have at least ten (10) business days to respond to the notice received before the employer may make a final decision. That response may include information that challenges the accuracy of any information provided in the notice, or the submission of mitigation or rehabilitation evidence, or both. Evidence of mitigation or rehabilitation may be established by any of the following:

• Evidence showing that at least one year has elapsed since release from any correctional institution without subsequent conviction of a crime.
• Evidence showing compliance with terms and conditions of probation or parole.
• Any other evidence of mitigation or rehabilitation and present fitness provided, including, but not limited to, letters of reference.

The California Ban the Box bill requires the employer to consider information submitted by the applicant before making a final decision. The employer shall not disqualify an applicant from the employment if the applicant showed evidence of mitigation or rehabilitation. If an employer makes a final decision to deny an application solely or in part because of the applicant’s prior conviction of a crime, the employer shall notify the applicant in writing of all the following:

• The final denial or disqualification.
• Any existing procedure the employer has to challenge the decision or request reconsideration.
• Whether the applicant may be eligible for other employment or occupation with the employer.
• The earliest date the applicant may reapply for a position of employment.
• The right to file a complaint with the department.

According to the bill, roughly seven million Californians – or nearly one in three adults – have an arrest or conviction record that can significantly undermine their efforts to obtain gainful employment. Nationwide, 24 states and over 150 cities and counties have adopted Ban the Box laws. Nine states and 15 major cities have adopted Ban the Box laws that cover both public and private sector employers. Over 20 percent of the United States population lives in a state or locality with Ban the Box laws.

“A problem with this bill is that it provides zero immunity or protection for employers who do background checks, follow the process in good faith, hire ex-offenders, and then get sued if it turns out to be a bad decision,” says Attorney Lester Rosen, founder and CEO of Employment Screening Resources® (ESR), a global background check firm located in California. “What is needed is a comprehensive approach that not only bans the box, but protects employers trying to do the right thing.”

“Another issue is that the law still allows each county and city to have their own Ban the Box regulations, so there can conceivably be a state law and 58 county laws, creating a crazy-quilt patchwork of hiring laws and regulations,” says Rosen, author of The Safe Hiring Manual, a comprehensive guide to background checks updated for a 3rd edition that was published in January 2017. “If the state is going to pass a law, it should preempt local laws so everyone in California knows exactly what is expected.”

Rosen also noted that Ban the Box laws restricting access to the criminal records of job applicants may have the unintended consequence of hurting ex-offenders by making employers look at other ways to mitigate risk. “Getting ex-offenders back to work is certainly critical, but employers cannot solve all societal ills. What is needed is a strategy that not only bans the box, but also focuses on things such as job training, increased family services, and criminal justice and prison reform,” explains Rosen.

More Ban the Box Information from ESR

Employment Screening Resources® (ESR) – a strategic choice for employers concerned about accuracy and compliance in their screening programs – supports sensible Ban the Box laws and offers employers a Ban the Box Information Page with news and legal updates about Ban the Box states, cities and counties, and resources. The ESR Ban the Box Information Page is at www.esrcheck.com/Ban-the-Box/. To read more ESR News blogs about Ban the Box, visit www.esrcheck.com/wordpress/tag/ban-the-box/.

NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

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