Understanding California’s Ban-The-Box Law

Two words that can strike fear into the hearts of business owners are: Discrimination Lawsuit. Why? One reason is that many business owners have little or no insurance coverage to help pay the cost of a discrimination claim from an employee or customer.

Another concern is that the quantity and variety of discrimination claims keep growing. California’s Department of Fair Employment and Housing, for example, handles between 10,000 and 20,000 discrimination claims per year. In addition, the federal Equal Employment Opportunity Commission handles between 80,000 and 100,000 discrimination claims per year.

One of the latest issues in employment law involves the hiring of people with a criminal record.

On one hand, a good-paying job is one of the best ways to prevent criminal recidivism. So, making it easier for rehabilitated criminals to get a good job should be good for everyone.

On the other hand, employers may worry about being sued for negligent hiring. If a person with a prior criminal conviction is hired, and they later commit a crime in the course of their work, the employer could be sued on the grounds that they should have foreseen the risk.

Still, it is unfair for people to be denied good-paying jobs simply because of a crime committed many years ago that does not affect their current job performance and poses no risk to the safety of others. Therefore, a growing number of states, including California, have passed “ban-the-box” laws.

Ban-the-box laws aim to give people with criminal convictions a better chance of making it past the application-screening and interviewing stages of the hiring process.

California state law has, since 2013, prohibited public sector employers from inquiring into an applicant’s criminal history until the applicant has met all other qualifications for a job.

Effective January 2018, California’s ban-the-box law extends to all employers in California with five or more employees.

Ban-the-box laws require employers to remove questions such as “Check yes or no: Have you ever been convicted of a crime?” from job application forms. In addition, employers must not ask questions about an applicant’s criminal history during the interviewing stage, focusing instead on determining whether the candidate is otherwise qualified for the position.

Employers can still conduct criminal background checks, but they generally must wait until after making an applicant a conditional job offer. If a job-relevant conviction history is then discovered, the job offer may be rescinded, subject to various requirements intended to ensure fairness.

The California state ban-the-box law explicitly states that its employee protections apply in addition to (not in place of) other laws and local ordinances. Business owners should therefore check for any county or city requirements that might apply.

Employers are exempt from ban-the-box requirements when hiring for positions where any state, federal, or local law requires a criminal background check or restricts employment based on criminal history. For example, people with violent, sex, or drug crime convictions are typically barred from working with children. In the financial services industry, a felony conviction involving dishonesty or breach of trust can be a barrier to employment.

A person may have a criminal conviction in their past and turn out to be a great employee for your business. But at the same time, you may be concerned about your potential liability in the event of a lawsuit alleging employee misconduct. To ensure that your hiring practices meet the requirements of California law while providing you with protection from liability, consult an experienced Silicon Valley employment law attorney. The lawyers at SAC Attorneys LLP are well-versed in the applicable federal, state, and local laws in Santa Clara County. Call our office at (408) 436-0789 to arrange a free consultation.

Sources:

• Legislative Counsel's Digest