What Are Ban The Box Laws In California and When To Consider An Applicant’s Criminal History

What Are Ban The Box Laws In California and When To Consider An Applicant’s Criminal History

Jul 3, 2022
Reading Time: 6 minutes
Written by Ilyas Omari

When receiving an employment application, one of the most important things you might want to do is ask a job applicant about their criminal history or conduct a background check.

However, the ban the box laws in California may make this illegal for you. 

If you want to know whether these laws apply to you, and how you can ask a job applicant about their criminal history read along. 

We’ve also added detailed frequently asked questions to help you through.

What are California Ban The Box Laws?

California ban the box laws refer to the California Fair Chance Act (AB 1008) which took effect on the 1st of January in 2018. This Act prevents the majority of California employers from asking about a job applicant’s conviction history and from conducting background checks until after they’ve provided the applicant with a conditional offer of employment.

The Fair Chance Act amended the Fair Employment and Housing Act (FEHA)to include section 12952 of the Government Code.

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What is the purpose of the California ban the box laws?

The primary purpose of the ban the box laws is that job applicants with conviction records have a better chance of getting hired.

Does the Fair Chance Act apply to all employers?

The majority of government and private employers are required to comply. However, there are employers that aren’t required to comply, including:

  • Employers that have less than five employees
  • Criminal justice agency employers are excluded. Under California Penal Code 13101, these employers include county jails, police departments, and district attorneys.
  • Law enforcement employers

The Act doesn’t apply to positions:

  • Where it’s a legal requirement of the position that the employer must conduct a background check on the applicant or that employment must be restricted on the basis of an applicant’s criminal history
  • Where any other law requires an employer to conduct a background check for the position the candidate is applying for. This is common for positions regulated by government agencies or jobs related to the financial field
  • Covered by Labor Code section 1685 (applying to farm labor contractors)

What happens if you don’t comply with the Fair Chance Act?

If you fail to comply with the Fair Chance Act, the job applicant has the right to file a complaint against you through the California Department of Fair Employment and Housing (DFEH).

Applicants can file complaints using the following methods:

  1. They can file their complaint online using https://ccrs.dfeh.ca.gov
  2. They can email their complaint to [email protected] or mail it to 2218 Kausen Drive, Suite 100, Elk Grove, CA 95758
  3. They can physically file a complaint at a DFEH office 

Furthermore, a job applicant who brings a claim on the basis of employment discrimination in relation to their criminal conviction could be awarded with equitable relief or monetary damages.

When Can You Consider An Applicant’s Criminal History?

Under the Californian ban box law, you’re only allowed to check on an applicant’s criminal history once you’ve selected them for the position and provided them with a conditional job offer. 

Following this offer of employment, you’ll be able to ask a candidate regarding their conviction history and conduct a background check. 

However, you’re required to receive written consent from a job applicant to conduct a background check on them. 

Which convictions are covered by the ban the box laws? 

In California, this state law applies both to misdemeanor and felony convictions.

Can you revoke a job offer after learning of an applicant’s conviction record?

You can revoke a job offer you have given a job applicant. However, you must first take the following steps:

  1. Firstly, you must take into account when the applicant’s offense occurred and to what extent it relates to the position
  2. Secondly, you must do the following:
    1. Inform the applicant in writing that you have revoked the offer of employment
    2. Identify the  disqualifying conviction or convictions that led to the job offer being revoked
    3. Present the applicant with a copy of their conviction history report
    4. Inform them of the date by which they must respond to the revocation of the offer
  3. You must provide the applicant with a minimum of five business days to respond to your revocation of the job offer before you make your final decision
  4. Lastly, you must provide the applicant with a written copy of your employment decision explaining the disqualification if you choose to revoke the job offer

How can an applicant respond to having their employment offer revoked?

Job applicants can respond in the following ways:

  • The respondent can submit evidence pointing out the incorrect information contained in the conviction report
  • Applicants can provide employers with reference letters, details regarding their education, volunteer projects, or work, and an explanation of why they were convicted, to attempt to convince them to hire them despite their conviction history
  • The law allows applicants to apply for an additional five days to respond to the employer’s revocation of the employment offer

Factors to consider when deciding whether to hire an individual with a criminal record

When deciding whether to hire a candidate who has a criminal record, you should consider the following factors:

  • The nature of the job they’re applying for
  • The gravity of the offense they committed
  • The nature of the offense they committed
  • The amount of time that’s passed since they committed the offense
  • The amount of time since the completion of the sentence they served as a result of the offense
  • Whether they can show evidence of rehabilitation since committing the offense

What other criminal history can’t you consider during the hiring process?

You are also prevented from considering the following during the hiring process:

  • An arrest that didn’t lead to a conviction. However, exceptions apply in specific circumstances (except in certain circumstances)
  • Whether the applicant has received a referral to or has participated in a pre or post-trial diversion program
  • Dismissed, expunged, or sealed convictions can’t be taken into consideration

Frequently Asked Questions (FAQs)

Can you ask a job applicant for their criminal record? 

According to the ban the box law, you can only ask a job applicant about their criminal record after you’ve offered them a position. 

Can the employer revoke my job offer after learning of my conviction record?

You can revoke a job offer you have made to a job applicant on the basis of their conviction record after you have made an individualized assessment.

What other laws provide job applicants with rights and protections?

Job applicants who have a criminal history are also provided with rights and protection through local law, state law, and federal law, in addition to ban the box laws. These include the following: 

  • Job applicants are protected from being discriminated against on the basis of their race, color, or nationality by California regulations and federal and state civil rights laws. For example, under Title VII of the Civil Rights Act of 1964, it’s illegal for employers to discriminate against a job applicant due to their race or nationality 
  • Job applicants who feel that they have been discriminated against can bring a discrimination claim against an employer under the U.S.Equal Employment Opportunity Commission (EEOC) 
  • Other employment laws in California make it unlawful for employers to discriminate against applicants on the basis of characteristics including ethnicity and race 
  • Applicants or employees who are denied employment or fired because of their criminal conviction that didn’t affect their suitability or ability to perform their job can file a complaint
  • When employers are conducting background checks under federal and California law they’re required to seek consent from the candidate to perform the check. They must also follow further procedures when deciding to reject a candidate’s application on the basis of the background check
  • San Francisco and Los Angeles have their own jurisdiction regarding California ban the box laws. For example, San Francisco has the San Francisco Fair Chance Ordinance
  • To conduct a criminal background check through a third party, employers are required to follow the Fair Credit Reporting Act (FCRA). Under this Act, employers must receive written consent from the job applicant to conduct a background check, and they must  notify the applicant and explain why they didn’t hire them on the basis of the background check

How much does it cost to get a criminal background check in California?

According to the State of California Department of Justice Office of the attorney general, the general cost of an employment background check is $32.

Conclusion

Now that you’re aware of the ban the box laws in California, you can avoid legal trouble during the hiring process and avoid applicants filing complaints and bringing discrimination claims against you.

In addition, you know now when and how to legally consider an applicant’s criminal history.

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