November 14, 2017

California Further Curtails Employer Consideration of Criminal History and Bans the Topic from the Interview Process Altogether

4 min

California's statewide "ban the box" law takes effect January 1, 2018. The new law – which covers employers with five or more employees (including nonprofits) – imposes fresh restrictions at all three stages of the hiring process: during the interview, after a conditional offer of employment, and during the preliminary and final determination process.

1. During the Interview

Once the law takes effect, covered employers will be prohibited from asking applicants about criminal history during interviews and from including criminal history questions on employment applications. Employers will also be prohibited from considering criminal history before extending conditional offers of employment. Finally, employers may not share or distribute the following information if/when they obtain it through a background check on an applicant for employment: (1) a non-conviction arrest, (2) referral to, or participation in, a diversion program (pre- or post-trial); and (3) sealed, dismissed, expunged, or eradicated convictions.

2. After a Conditional Offer of Employment

Once an employer makes a conditional offer of employment, it may then consider an applicant's criminal history. But the new law makes it illegal to reject an applicant solely (or in part) because of the applicant's criminal history – unless the employer performs a mandatory "individualized assessment" of whether the applicant's criminal history would make him or her unfit for the specific position sought. To comply with the law, employers must consider all of the following as part of the individualized assessment:

  • The nature and gravity of the offense and conduct;
  • The time that has passed since the offense or conduct and completion of the sentence; and
  • The nature of the job held or sought.

Employers are not required to memorialize the assessment in writing.

3. The Preliminary and Final Determination Process

If an employer concludes, through the individualized assessment, that an applicant is unfit for the position, the employer must follow a specific and detailed process before it may issue a final rejection.

First, the employer must notify the applicant of its preliminary decision in writing, and include a copy of the conviction history report, if any. This written notice does not have to explain the employer's reasoning (i.e., the individualized assessment), but it must tell the applicant that he or she has the right to respond within five (5) business days.

If the applicant provides a response, the employer must consider it, including any supporting evidence or documents. Then, and only then, may an employer make a final determination whether to hire the applicant.

If the employer's final determination is to reject the applicant, it must provide the applicant written notice of that decision. As with the preliminary notice, the final notice does not have to explain the employer's reasoning. But it must include information about the employer's internal procedure(s) for appeal, if any. And the written notice must inform the applicant of his or her right to file a complaint with the Department of Fair Employment and Housing.

Practical Effects / Fast Facts / TL;DR

In addition to seeking the advice of trusted legal counsel, employers should consider taking the following steps, prior to January 1, 2018, to reduce the risk of violating the new statewide law:

  • Update Job Applications to remove any questions about criminal history;
  • Create or Revise Company Policies to comply with the new law, specifically the step-by-step process requiring an individualized assessment and preliminary and final determination notices;
  • Meet with HR and Hiring Managers to ensure they understand the company's policies and the requirements of the new law. Document these instructions in writing;
  • Contact Your Background Screening Provider to ensure its policies and procedures comply with the new law;
  • Determine the Applicability of Local Laws, which may impose stricter requirements or additional obligations on employers. For example, the Los Angeles "Fair Chance Initiative for Hiring Ordinance" requires all private employers with more than 10 employees (including owners, managers, and supervisors) located or doing business in the City of Los Angeles to follow the same assessment and notice procedure. But Los Angeles employers must also commit the individualized assessment to writing and provide a copy to any applicant to whom it sends a preliminary rejection notice.