Ban the Box Spreads to California

Date: November 28, 2017

Beginning on January 1, 2017, California will become the 10th state to impose ban the box restrictions on private employers. This is but the latest development in a trend that has picked-up steam in recent years, as state and local jurisdictions experiment with criminal justice reform measures in the workplace. The National Employment Law Center estimates that over 150 cities and counties have imposed “ban the box” restrictions.

What is Ban the Box?

“Ban the box” laws prevent employers from asking a job applicant about his or her criminal history until after making a tentative job offer. These restrictions do not prohibit employers from considering relevant criminal history, but they prevent employers from asking about or considering criminal background up front.

When Can Employers Consider Criminal Background?

Employers may consider criminal history, even in ban the box jurisdictions. But regardless of where you do business, the U.S. Equal Employment Opportunity Commission provides guidance on employer usage of criminal history and cautions against consideration of arrest records. We’ve addressed those guidelines in the past.

Overall, employers should avoid blanket screening policies. Instead, EEOC advises employers to assess job applicants on an individualized basis, considering the nature and gravity of the offense, the time that has elapsed and whether the incident has bearing the applicant’s capacity to perform essential job functions.

Keep in mind that different states may impose additional restrictions on whether and when an employer may consider criminal offenses. For example, California prohibits employers from considering criminal offenses that occurred while the applicant was a juvenile, as well as records that have been officially expunged and arrest records that did not result in conviction. And again, where applicable, ban the box laws restrict employers from considering criminal history until after extending a tentative offer.

Why is the Small Business Community Concerned About Ban the Box?

Ban the box laws necessarily forces employers in a bind. For one, ban the box laws slow down the hiring process, which can result in added costs. As NFIB Legal Center’s Senior Executive Counsel, Elizabeth Milito, explained in a recent interview with Forbes: “Time is money, and [small business owners] need to be able to abort the hiring process right away, not after going through an interview and a job offer… They need to send somebody in there to hang the drywall tomorrow.”

Still, even more problematic is the reality that a business may face a potential lawsuit in rescinding an offer because of the applicant’s criminal record. Indeed, ban the box laws force employers into a catch-22. On the one hand, they may face potential liabilities in hiring an employee with a record, but they might also be sued by the rejected applicant and forced to defend their decision in court if they should rescind an offer.

What States impose Ban the Box restrictions on private employers?

The following jurisdictions have enacted ban the box legislation:

• California – Employers with five or more employees;
• Connecticut – All private employers;
• District of Columbia – Employers with ten or more employees;
• Hawaii – All private employers;
• Illinois – Employers with fifteen or more employees;
• Massachusetts – All private employers;
• Minnesota – All private employers;
• New Jersey – Employers with fifteen or more employees;
• Oregon – All private employers;
• Rhode Island – Employers with four or more employees;
• Vermont – All private employers.

What About Local Rules?

While a few states preempt all local-level employment regulation, most states allow local authorities to impose restrictions on top of existing state and federal standards. For example, although Illinois imposes ban the box legislation for businesses with fifteen or more employees, Chicago and Cook County extend ban the box restrictions to all private employees. Likewise, while some states impose ban the box only on public entities, municipalities and counties may extend ban the box restrictions to private employers. Accordingly, it is essential to check to see whether there are applicable municipal regulations.

What Do California Employers Need to Know?

As with most ban the box laws, California’s recently enacted AB 1008 makes it unlawful for subject employers to ask questions about criminal history on an employment application, or to inquire about or consider criminal history until after an offer is on the table. Thereafter, AB 1008 requires an individualized assessment before an employer may rescind an offer—i.e., requiring the employer to demonstrate that the criminal conviction has bearing on the applicant’s capacity to execute specific job duties.

Complicating things, California requires employers to delay a final decision until the applicant has been given notice of the preliminary decision in writing, and allowed at least five business days to respond. That notice need not explain the decision, but must include a copy of the disqualifying conviction(s), any conviction history report(s), and a statement that the applicant may challenge the accuracy of the conviction record, or present evidence of rehabilitation or other mitigating facts.

If the applicant says that he or she intends to dispute the conviction history or to submit additional documents for consideration, the employer is required to allow an additional five days before rendering a final decision. Additionally, employers must actually consider any new evidence or documents submitted by the applicant during this time period before making a definitive decision. Only then, if “the call on the field stands,” the employer must send an official notice of its final decision in writing. And importantly, that letter must inform the applicant of any existing procedure the company may have to reconsider the application, as well as notification that the applicant has a right to file a complaint with the California Department of Fair Employment and Housing.

Accordingly, California employers should tread lightly when considering criminal convictions. Not only must they wait to ask about or consider criminal background, but they must be sure that they stand on solid footing when rescinding a tentative job offer on account of a criminal conviction. Employers are advised to consult a trusted employment law attorney if a criminal background check reveals a potentially problematic record, to ensure that you are taking the proper steps to minimize risks in evaluating the applicant and in potentially rescinding an offer.

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