California’s Ban the Box Law, officially known as the California Fair Chance Act, assists Californians with conviction histories with re-entry into society by prohibiting employers from asking about conviction history before making a job offer. The Ban the Box Law seeks to remove the stigma associated with previous convictions and give all applicants a fair chance at securing employment by making the unlawful consideration of conviction history an unlawful employment practice under the Fair Employment & Housing Act (“FEHA”).
Ban the Box Definition
Prior to the enactment of the Ban the Box Law, many employers opted to include questions on written applications related to the applicant’s criminal and conviction history. Often, employers made consideration for employment contingent on answering these questions. These questions were used to screen candidates from employment. As a result, applicants with criminal histories had a harder time finding employment.
In response to the prevalence of employers’ widespread use of conviction history as a screening mechanism, numerous cities and counties have adopted “ban the box” policies, which prohibit employers from asking about an applicant’s conviction history before making a job offer. This means that an employer cannot ask about an applicant’s conviction history on a written application for employment. Today, 35 states and more than 180 cities and counties have adopted ban the box policies.
Covered Employers
Codified at Government Code section 12952, The California Ban the Box Law applies to employers with five or more employees. It applies to both public and private employers. However, certain positions are exempt 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;
- Positions where an employer is required by law to conduct criminal background checks for employment purposes or to restrict employment based on conviction history.
Employer May Only Consider Conviction History After Making Conditional Offer
Under the California Ban the Box Law, an employer may conduct a criminal history check only after making the applicant a conditional job offer. If the applicant has a conviction history, the employer must perform an individualized assessment regarding the conviction history. The employer cannot outright deny the applicant employment solely or partially based on their conviction history until after performing the individualized assessment.
The individualized assessment requires the employer to weigh the applicant’s conviction history against the position and ascertain the viability of extending employment. The employer may not deny employment unless the applicant’s conviction history has a direct and adverse relationship with the position’s duties that justify a denial. In performing the individualized assessment, the employer must consider the following factors:
- The nature and gravity of the offense;
- The time passed since the offense or sentence completion; and,
- The nature of the job held or sought.
If, after completing the individualized assessment, the employer wishes to deny employment, the Ban the Box Law prescribes a procedure for providing the applicant with notice. First, the employer must make a written preliminary decision and notify the applicant of the disqualifying conviction. The employer is not required to justify the decision, but the notification must contain:
- A notice of the disqualifying conviction or convictions underlying the preliminary decision to rescind the offer;
- A copy of the conviction report, if any; and,
- An explanation of the applicant’s right to respond to the notification, which must contain the deadline that the preliminary decision becomes final and the deadline to respond.
Next, the employer must provide the applicant with a chance to respond. Under the Ban the Box Law, the applicant must be provided at least five business days for a response to the written notification of disqualification from employment. The applicant should provide information and evidence demonstrating their fitness for the position, or dispute the accuracy of their conviction history report. The law provides for an additional five-day extension, provided the applicant makes a written extension request to the employer. The employer must consider information submitted by the applicant before rendering a final employment decision.
Under the California Ban the Box Law, the employer must notify the applicant of their final decision in writing. The notification must include:
- The final denial or disqualification;
- The procedure for reconsideration or to challenge the decision, if any; and,
- The right to file a complaint with the Department of Fair Employment & Housing.
Employers who fail to follow the aforementioned procedure cannot revoke a job offer or terminate their employee.
Employer Liability for California Ban the Box Law Violation
Applicants and employees denied employment and terminated for their criminal histories have claims for damages under FEHA. Damages for ban the box violations include actual damages, punitive damages, and a statutory penalty of up to $25,000. Additionally, the applicant can seek recovery of court costs and attorney fees incurred with bringing the lawsuit.
If the employer unreasonably decides to disqualify the applicant from the position, the applicant should reconsider filing a complaint with the state or taking legal action. Employers who fail to follow the aforementioned procedure cannot revoke a job offer or terminate their employee. If your employer or prospective employer has denied your California Ban the Box law rights, contact Astanehe Law immediately for your free consultation. You have rights, and Astanehe Law may be able to assist you. Call us at (415) 226-7170 or email us at contact@astanehelaw.com. Astanehe Law Knows Employee Rights.
