Clarifying California’s ‘ban the box’ law for job applicants

This article looks at what California’s Fair Chance Act means for both employers and employees.

On January 1, 2018, California's 'ban the box' law went into effect. The law prohibits most employers from asking job applicants about their criminal records until after a conditional offer of employment has been made. As the Salinas Californian reports, the law expands a previous law that had applied only to public agencies to all business that employ five or more people in the state. With the law now in effect, it is important for both employers and employees to understand what the legislation means for them.

What the Fair Chance Act changes

The law, known as the California Fair Chance Act, addresses how employers can use a job applicant's criminal record when determining whether or not to offer that applicant a position. Specifically, the law prohibits employees from asking applicants about their criminal history until after a conditional offer has been made, meaning that job application forms cannot contain a section asking applicants if they have a criminal record. Employers can only ask applicants if they have a record or to conduct a criminal background check after a conditional offer of employment has been given to the applicant.

If the employer finds that the applicant does have a criminal record and decides to reject the applicant "solely or in part" due to that record, then the law requires the employer to create an "individualized assessment." This assessment must consider whether the convictions have an adverse effect on the specific duties of the job. The assessment must take into account the nature and severity of the offenses, how long ago the offenses occurred, and the nature of the position being offered.

Applicants' right to respond

As the San Diego Union-Tribune reports, while the individualized assessment does not have to be made in writing, a notice of a "preliminary decision" must be provided to the applicant in writing if their convictions disqualify them from the position. The notice must list the convictions that were the basis for the disqualification, a copy of the criminal record report that was used to disqualify the candidate, and an explanation about the candidate's right to respond.

The applicant then has the right to respond to the preliminary decision, including by challenging the accuracy of the criminal history report used in coming to the decision. The applicant can also provide evidence of mitigation or rehabilitation, which the employer must take into account. During this process, the employer cannot offer the position to another candidate.

Employment law

Employment laws in California are constantly evolving, which is why both employers and employees need to be aware of what their rights and obligations are. An employment law attorney can assist those who have concerns about employment regulations, including with helping them ensure they are in compliance with the law or with defending their rights in cases of alleged wrongdoing or discrimination.