2021Ban the Box
Ban the Box

Written By ESR News Blog Editor Thomas Ahearn

On October 20, 2021, the California Department of Fair Employment and Housing (DFEH) announced a new effort to identify and correct violations of the Fair Chance Act, a pioneering state “Ban the Box” law that seeks to reduce barriers to employment for ex-offenders with criminal histories, according to a DFEH press release.

The Fair Chance Act – which took effect on January 1, 2018 – prohibits employers with five or more employees from asking job candidates about their conviction history before making them a job offer. This “Ban the Box” law is part of California’s Fair Employment and Housing Act (FEHA) that is enforced by the DFEH.

Statements in job advertisements indicating an employer will not consider applicants with a criminal history – such as “Must Have Clean Record” – violate the Fair Chance Act’s requirement that employers consider an applicant’s criminal history on an individual basis, as well as any mitigating information provided by the applicant.

The DFEH used technology to conduct mass searches of online job advertisements for violations of the Fair Chance Act and found over 500 job advertisements with unlawful statements that employers will not consider job applicants with criminal records. The DFEH sent notices to these employers to remove the unlawful statements.

The DFEH is also offering a Fair Chance Act Toolkit of resources to assist employers in complying with the law and plans to release interactive training and an online app in 2022. The DFEH also encouraged individuals to report discriminatory job advertisements or file complaints with the department. The DFEH’s toolkit includes:

  • Sample forms that employers can use to follow the Fair Chance Act’s required procedures;
  • A guide to using DFEH’s sample forms;
  • A suggested statement that employers can add to job advertisements and applications to let applicants know that the employer will consider individuals with criminal histories;
  • Answers to frequently asked questions (FAQs) about the Fair Chance Act; and
  • An informational video that explains the Fair Chance Act.

“DFEH is committed to preventing employment discrimination through innovative enforcement actions and by providing clear guidance to employers. Employers should thoughtfully consider an individual’s circumstances before denying them a job, rather than acting on stereotypes and generalizations,” said DFEH Director Kevin Kish.

“Ban the Box” is a national campaign that seeks to advance job opportunities for ex-offenders by eliminating any inquiry into a candidate’s criminal history on the initial job application – specifically the check box that requires candidates to disclose their criminal history – and delaying that question until later in the hiring process.

As of October 2021, 36 states and more than 150 cities and counties have “Ban the Box” laws so a job applicant’s qualifications may be viewed without the stigma of a criminal record, according to the National Employment Law Project (NELP). In Florida, several cities and counties have passed some form of “Ban the Box” legislation.

“Ban the Box” laws and second chance programs that help allow ex-offenders with a prior criminal record an opportunity to find work will continue to evolve, according to leading global background check firm Employment Screening Resources® (ESR), which compiled the “ESR Top Ten Background Check Trends” for 2021.

Employment Screening Resources® (ESR) – which was ranked the #1 screening firm in 2020 by HRO Today – offers a white paper on “Ten Critical Steps for Ex-Offenders to Get Back into the Workforce,” an “ESR Ban the Box Resource Guide,” and a Ban the Box Resource Page. To learn more about ESR, visit www.esrcheck.com.

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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