California Enacts 'Ban the Box' Law

Law Creates New Procedures Governing Job Application Process

California has enacted a "ban the box" law, effective January 1, 2018. Highlights of the law are presented below.

Prohibited Employer Actions
Employers with 5 or more employees are generally prohibited from:

• Including on any employment application--before the employer makes a conditional offer of employment to the applicant--any question that seeks the disclosure of an applicant's conviction history.
• Inquiring into or considering the applicant's conviction history (including any inquiry about conviction history on any employment application) until after the employer has made the applicant a conditional offer of employment.
• Considering, distributing, or disseminating certain criminal history information (section: 12952(a)(3)) while conducting a conviction history background check in connection with any application for employment.
• Interfering with, restraining, or denying the exercise of (or the attempt to exercise) any right provided under the law.

Note: The law does not prevent an employer from conducting a conviction history background check that satisfies the provisions above.

Procedure when Denying Employment
Employers must follow the procedure below when denying employment:

Individualized assessment. An employer that intends to deny an applicant a position solely (or in part) because of the applicant's conviction history must make an individualized assessment of whether the applicant's conviction history has a direct and adverse relationship with the specific job duties that justify denying the applicant the position. In making this assessment, the employer must consider certain factors (section: 12952(c)(1)(A)).

Note: An employer may (but is not required to) commit the results of this individualized assessment to writing.

Notification. If the employer makes a preliminary decision that the applicant's conviction history disqualifies him or her from employment, the employer must notify the applicant of this preliminary decision in writing. That notification may (but is not required to) justify or explain the employer's reasoning for making the decision. Regardless, the notification must contain certain information (section: 12952(c)(2)).

Applicant's response. The applicant must have at least 5 business days to respond to the notice described above before the employer may make a final decision. If the applicant notifies the employer in writing within the 5 business days that the applicant disputes the accuracy of the conviction history report that was the basis for the preliminary decision to rescind the offer and that the applicant is taking specific steps to obtain evidence supporting that assertion, then the applicant must have 5 additional business days to respond to the notice.

Note: The employer must consider information submitted by the applicant under the paragraph above before making a final decision.

Final decision. If an employer makes a final decision to deny an application solely (or in part) because of the applicant's conviction history, the employer must notify the applicant in writing of certain information (section: 12952(c)(5)), including the right to file a complaint with the state.

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