Employment Law

Although only launching in 2018, California’s thriving cannabis industry is ripe with job opportunities. Indeed, marijuana industry-related employment listings on job search website Indeed.com spiked more than 1,200 percent over the last four years. California’s recently enacted Ban the Box law, which prohibits employers from asking applicants about conviction history on initial job applications and during hiring interviews until after extending a conditional employment offer, is one critical state law inextricably linked to the cannabis industry. Owing to the disastrous war on drugs, millions of citizens presently have criminal records for nonviolent drug offenses, which often thwart their employment efforts. Wrongful denials even occur in cannabis-related positions. Given marijuana legalization’s proximal relationship with Ban the Box, cannabis applicants must be acquainted with their California Ban the Box rights.

California’s Fair Chance Act

California’s Ban the Box Law, also known as the Fair Chance Act, went into effect on January 1, 2018. The law assists Californians with conviction histories by prohibiting employers from inquiring into conviction history on initial job applications or during hiring interviews before extending a conditional employment offer. California’s Ban the Box Law seeks to remove the stigma associated with previous convictions and give all applicants a fair chance at securing employment.

California Ban the Box Covered Employees & Exemptions

California’s Ban the Box law applies to all employers with five or more employees. It applies to public and private employers. However, the law exempts certain employers from the law, including:

• Positions where a government agency is required to conduct a conviction history background check;
• Positions at criminal justice agencies, as described in Penal Code section 13101;
• Positions as a farm labor contractor, as described in Labor Code section 1685; and,
• Positions where an employer is required by law to conduct criminal background checks for employment purposes or to restrict employment based on conviction history. These positions typically include healthcare workers, law enforcement workers, and people employed in the financial services industry.

Does California’s Ban the Box Law Cover Cannabis Jobs?

Yes, California’s Ban the Box law covers most entry-level positions for jobs in marijuana industry. No federal, state, or local law or regulation mandates criminal background checks on entry-level cannabis applicants.

As of the date of this post, no California regulation or law exists requiring cannabis employers to conduct criminal background checks on applicants for entry-level positions. Similarly, as of February 2020, no California county or city has passed a regulation or law requiring criminal background checks for entry-level positions in the marijuana industry.

Although marijuana remains an illegal Schedule I substance under the Controlled Substances Act, the federal government significantly shifted regulation and enforcement policies over the prior decade. A 2013 Memo, known as the Cole Memo, advised U.S. attorneys to limit federal marijuana enforcement to only a handful of circumstances. Despite rescinding the memo, the Trump Administration has mostly left cannabis companies complying with state laws undisturbed. Although abstaining from reinstating the memo, the present Attorney General, William Barr, expressed a commitment to the memo’s principles and has permitted cannabis companies to continue operations undisturbed in states where marijuana is legal. Thus, it is unlikely the federal government will reverse course and impose rules impeding the expansion of the cannabis industry, including mandating industry-wide criminal background checks for cannabis positions.

The lack of law or regulation providing exemption, combined with an increasingly lax federal posture, means that California’s Ban the Box law applies to cannabis employers. California’s Ban the Box has a simple framework: Cannabis employers cannot ask about applicant conviction history on initial applications or during hiring interviews, until extending a conditional employment offer. Where an applicant possesses conviction history, the cannabis employer must engage in an individualized assessment considering the nature and gravity of the offense, the time passed since the offense or sentence completion, and the nature of the job sought. If, after completing the assessment, the cannabis employer denies employment, the applicant can appeal. Cannabis employers must comply with California’s Ban the Box law.

California Equity Act for the Cannabis Industry

In 2018, California passed the California Cannabis Equity Act, which seeks to ensure that the people harmed by the war on drugs can receive assistance entering the cannabis industry as entrepreneurs or employees. Business & Professions Code § 26240. As part of the Cannabis Equity Act, the state encourages cities and counties to establish Equity Programs, which provide a leg up to people with criminal records searching for employment in the cannabis industry. The Equity Act not only complements California’s Ban the Box law, but it also evidences an intent to assist applicants with criminal records secure employment in the cannabis industry.  

This article originally appeared on the Astanehe Law website.  To discuss with an attorney California’s Ban the Box Law, a wrongful employment denial, or a wrongful termination, contact Astanehe Law.  Contact Astanehe Law for assistance.