In January, the so-called “ban the box” measure, which applies to virtually all California public and private employers, goes into effect. Here’s what the law prohibits, requires, and permits.
The law prohibits an employer from including on an application a question (such as a box to be checked) concerning an applicant’s criminal convictions until the applicant has received a conditional employment offer. The law further prohibits inquiry about, or consideration of, such convictions in deciding whether to extend such a job offer. These prohibitions are designed to avoid summary disqualification of an applicant with a criminal record.
The new law permits an employer to conduct a criminal background check after extending a conditional job offer. If, after reviewing the background report, the employer is inclined to reject the applicant “solely or in part” because of the applicant’s criminal record, the law requires the employer to make an “individualized assessment,” which need not be in writing, of whether the applicant’s conviction(s) have a direct, negative relationship to the “specific duties” of the job. In making that assessment, the law requires the employer to consider: (1) the nature and gravity of the crime; (2) the passage of time since the offense and completed sentence; and (3) the nature of the job.
A legislative analyst observed that “as a practical matter, th[is] requirement will act as more of a guideline. There is no indication of how long or thoughtful the employer’s assessment must be and no obvious way to prove whether or not the employer actually undertook it. However, wise human resource managers may very well take up a practice of” putting the assessment in writing to avoid later speculation about the “content of that assessment”. Beware: that writing will be scrutinized if a disappointed applicant later sues.
This law requires an employer to give written notice of a “preliminary decision” to disqualify an applicant based on his conviction history. The law permits, but does not require, that notice to include an explanation of the employer’s reasoning. The law doesrequire the notice to include: (1) the conviction(s) that are the basis for the decision; (2) a copy of any conviction history report used to make that decision; and (3) an explanation of the applicant’s right to respond to the preliminary decision and the response deadline, at least five business days from the notice, to submit the response before a final decision is made. The explanation must advise the applicant that the response may include evidence challenging the conviction history report, evidence of the applicant’s rehabilitation or mitigating circumstances, or both a challenge to the report’s accuracy and evidence of rehabilitation or mitigation.
If the applicant sends the employer written notice within five business days disputing the accuracy of the report and identifies “specific steps” being taken to obtain supporting evidence, the law requires the employer to give the applicant five more business days to respond.
The law requires the employer to consider whatever additional information the applicant submits before making a final decision. Note: During this entire period, the employer may not offer the job to someone else.
If the employer finally rejects the applicant “solely or in part because of the applicant’s” criminal record, the law requires the applicant be notified of: (1) the final decision, with or without an explanation of the employer’s reasoning; (2) any procedure the employer has for contesting the decision; and (3) the applicant’s right to file a complaint with the Department of Fair Employment & Housing.
Nothing in the law prohibits an employer from rejecting an applicant because of prior criminal convictions. The law does not make prior criminal conviction a protected classification under discrimination law the way race and gender are.
What the law does do is mandate a series of procedural steps and delays in the hiring process, with uncertain remedies against the unwary employer that misses a step and peril to the employer and society alike if a member of this unique class of employees commits a crime on the job. The law provides no immunity from civil liability for an employer in such circumstances.
The legislature is betting that these and other risks will be outweighed by the benefits of increased “prosocial behavior” by employed ex-convicts and by reduced recidivism. We’ll see.
Dan Eaton is a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is an instructor at the San Diego State University Fowler College of Business where he teaches classes in business ethics and employment law. He may be reached at firstname.lastname@example.org. His Twitter handle is @DanEatonlaw.
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