On January 1, 2018, California will become the newest U.S. state to “Ban the Box” when a new law will prohibit most employers in the state that regularly employ five or more employees from (1) including on any application for employment, before the employer makes a conditional offer of employment to the applicant, any question that seeks the disclosure of an applicant’s conviction history, or (2) inquiring into or considering the conviction history of an applicant until after the applicant has received a conditional offer of employment.
Under the new law, if after providing a conditional offer of employment to a job applicant, an employer intends to deny the applicant a position of employment solely or in part because of the applicant’s conviction history, the employer must first make an “individualized assessment” of whether the applicant’s conviction history has a “direct and adverse relationship” with the job’s duties that justifies the decision to deny employment. An “individualized assessment” takes into account: (1) the nature and gravity of the offense, (2) the time that has passed since the offense and completion of the sentence, and (3) the nature of the job sought. Under the new law, this individualized assessment does not have to be in writing.
Consistent with existing law, in conducting a criminal history check, employers may not consider any of the following: (1) arrests not followed by conviction, (2) referrals to or participation in a pretrial or posttrial diversion program, or (3) convictions that have been ordered sealed, dismissed, expunged, or statutorily eradicated.
If the employer determines after conducting this individualized assessment that the applicant’s conviction history disqualifies the applicant from employment, the employer must notify the applicant of this preliminary decision in writing. This notification must include all of the following information:
(1) Notice of the disqualifying conviction(s) that is/are the basis for the preliminary decision to rescind the conditional offer of employment;
(2) A copy of the conviction history report, if any; and
(3) An explanation of the applicant’s right to respond to the notification of the preliminary decision before the decision becomes final and the deadline by which to respond. This explanation must inform the applicant that his/her response may include submission of evidence challenging the accuracy of the conviction history report, evidence of rehabilitation, or evidence of mitigating circumstances. The applicant must be provided at least five business days to respond to the notification before the employer makes a final decision, and if the applicant notifies the employer in writing within this deadline that he/she disputes the conviction report’s accuracy and is taking steps to obtain supporting evidence, then the applicant must be allowed five additional business days to respond to the notice. The employer must consider any information the applicant timely submits before making a final decision.
If an employer reaches a final decision to deny an applicant employment solely or in part because of the applicant’s conviction history, the employer must notify the applicant in writing of all of the following:
(1) That the employer has made a final decision to deny employment;
(2) Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration; and
(3) The right of the applicant to file a complaint with the state Department of Fair Employment and Housing.
The statute expressly does not apply to the following positions:
- A position for which a state or local agency is otherwise required by law to conduct a conviction history background check.
- A position with a criminal justice agency.
- A position as a Farm Labor Contractor.
- A position where an employer or agent of an employer is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history.
In light of this new law, employers should update their job applications, offer letters, and other documents and policies to remove questions seeking the disclosure of criminal history information before a conditional offer of employment has been made. Employers should also be mindful that various California cities, including Los Angeles, have their own “Ban the Box” ordinances, which may impose additional obligations on employers. For more information about these laws, please contact a Bernstein & Friedland, P.C. attorney at 818-817-7570.
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The above summary has been prepared for general informational purposes only and is not intended as legal advice.
Bernstein & Friedland, P.C. is a boutique employment law firm in Los Angeles specializing in wrongful termination, discrimination, harassment, retaliation, and unpaid wage and overtime matters. Please visit our website at www.laemploymentcounsel.com to learn more about us.
