California Ban the Box Law

The nationwide campaign to "ban the box" has borne fruit in California. AB 1008, which will become effective January 1, 2018, makes it an unlawful employment practice for an employer with 5 or more employees to include on an employment application any question that seeks the disclosure of an applicant’s conviction history, to inquire into or consider the conviction history of an applicant until that applicant has received a conditional offer, and, when conducting a conviction history background check, to consider, distribute, or disseminate information related to specified prior arrests, diversions, and convictions. The new statute adds Government Code section 12952 to the Fair Employment and Housing Act.

An employer who intends to deny an applicant a position of employment solely or in part because of the applicant’s conviction history 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. If an employer a preliminary decision to deny employment based on that individualized assessment, it must provide the applicant with written notification of the decision, and allow him or her 5 business days to respond to that notification before the employer may make a final decision. If the applicant notifies the employer in writing that he or she disputes the accuracy of the conviction history and is obtaining evidence to support that assertion, the employer must grant the applicant an additional 5 business days to respond to the notice. The employer must consider information submitted by the applicant before making a final decision.

The ban the box campaign is aimed at encouraging employers to consider hiring those who have criminal convictions, and not to disqualify applicants automatically because of any criminal conviction.

Anti-discrimination laws banning employment practices that have a disparate impact on those with protected characteristics should already have made employers cautious about imposing blanket disqualification based on any conviction. Because studies have shown that such practices may result in a disproportionate number of minority applicants being disqualified, both the EEOC and the California Department of Fair Employment and Housing have made clear that employers risk liability for employment discrimination if they do not use a nuanced approach when considering the effect of convicitions on employment eligibility. See this enforcement guidance from the EEOC, and this recent regulation from the DFEH.

Restrictions on the ability to use criminal convictions for hiring decisions can put employers on the horns of a dilemma.

• On one horn, employers may face liability for negligent hiring if they do not conduct a thorough background investigation. For example, the North Dakota Supreme Court affirmed a verdict against a vacuum cleaner manufacturer who employed door-to-door salesmen to sell its products. One of the salesman had been convicted of two assault charges and two weapons charges, and had a criminal sexual conduct charge pending when he was hired. The company had not conducted a background check. McLean v. The Kirby Company.
• On the other horn, if the use of criminal background checks disproportionately disqualifies minority applicants, the employer may be liable for employment discrimination. For example, Pepsi Beverages had to pay $3.13 million to settle EEOC charges that criminal background check policy discriminated against African American applicants. EEOC press release.

Contact us if you have questions about what the new statute means for you.