What California’s “Ban the Box” Law Means for Job Applicants

It is well known that workers who have criminal histories have a difficult time finding employment. In past years, they were obligated to disclose any prior convictions as part of their job application. Consequently, they would be passed over for the job – they may not even get an interview. This would be despite the fact that they had fully paid their debt to society. 

Because lack of suitable employment is one of the causes of recidivism, states across the country have taken steps to prevent employers from unfairly denying employment to those who have a criminal record. If you believe that you have been denied employment due to your criminal record, you may have a discrimination claim and should contact an employment discrimination lawyer as soon as possible. 

What is California’s “Ban the Box” Law?

Some of us may recall the box on a job application that you would have to check if you had ever been convicted of a crime. While employers may have an interest in knowing whether a worker has a criminal history, checking this box would typically mean that you would receive no further consideration for the job. In fact, many people felt that it wasn’t worth completing the application if you had to check “yes.” 

States across the country have passed laws removing these boxes from job applications (hence, “ban the box”) and prohibiting employers from inquiring into an applicant’s criminal history during the initial stages of the application process. California adopted its own “ban the box” law known as the California Fair Chance Act, effective January 1, 2018. 

The purpose of this legislation is to give workers the opportunity to be evaluated on the basis of their qualifications rather than be eliminated from consideration based on the fact that they have a criminal record. The law applies to private and public employers who have 5 or more employees, prohibiting them from asking about your criminal record prior to making a conditional offer of employment. This means that an employer cannot ask about your criminal record on your application or at any point during the interview process, including the initial interview, a second interview, or a final round of interviews if they have not yet offered you the position. 

If you applied for a job and they asked you about your criminal record on the application or during the interview, you should contact an employment discrimination lawyer if you did not get the job.

Not All Employers Are Covered 

Job seekers should be aware that there are exceptions to the Fair Chance Act. It does allow employers to ask about your criminal background in the following situations: 

• The employer is a state or local agency required by law to conduct a criminal background check
• The employer is a law enforcement or criminal justice agency
• The employer is hiring a farm labor contractor
• The employer is required by federal, state, or local law to conduct a criminal background check for employment purposes and restrict employment based on the applicant’s criminal history

Conditional Offers of Employment

It is important to understand that your criminal record is off-limits unless and until the employer makes a conditional offer of employment. A conditional offer of employment is one that is dependent upon the applicant meeting certain conditions, which often include things like undergoing a background check or a review for any criminal convictions. 

While it is lawful for the employer to ask about your criminal convictions at this point, the law does not allow them to automatically exclude you on this basis. Instead, the employer must conduct an individualized assessment. 

The Individualized Assessment

The individualized assessment requires the employer to consider a variety of specific factors concerning your suitability for the position. These factors include the following: 

• The nature and seriousness of the offense
• The nature of the job that you are applying for
• The amount of time that has passed since the offense and/or completion of your sentence

Recent modifications to the regulations pertaining to the Fair Chance Act emphasize that the assessment must be a “reasoned, evidence-based determination” focused on determining whether your criminal record has a “direct and adverse relationship with the specific duties of the job.”  The assessment may be in writing but is not required to be. 

That said, the employer must notify you in writing if they decide to deny you employment based on your criminal history. They may explain the basis for their decision, but at a minimum, the written notice must include the following: 

1. Which conviction or convictions are the basis for their decision to deny you employment
2. A copy of the conviction history report, if available; 
3. Notification of your right to respond to the decision and the deadline by which to respond; and 
4. Your right to submit evidence that challenges the information in the conviction report, evidence of rehabilitation, or evidence of mitigating circumstances as part of your response. 

What Can You Do if A Potential Employer Violates the Law?

If a potential employer improperly asks about your criminal background, you can file a complaint with the California Civil Rights Department (CRD). The CRD will review and investigate the complaint and determine whether legal action against the employer would be appropriate. 

You may also be able to file a lawsuit against the employer seeking monetary damages and equitable relief. This could include compensation for your lost income as well as your attorney’s fees and court costs. 

The best thing to do, however, is to reach out to an experienced employment discrimination attorney. They can review your case, determine whether you have a claim, and help you understand your options. 

Contact Attorneys for Employees Today

If you have been discriminated against in violation of the law, Attorneys for Employees can help you hold your employer accountable. To discuss your case and how we can help, contact us today to schedule an appointment with an employment discrimination lawyer from our firm.