White Paper - Ban-the-Box: California

Ban the Box: California

A Comprehensive Look at California’s criminal history ban law

by Todd Higey, ESS General Counsel

Ban the Box Law: California 

California’s new [F1] statewide Ban the Box [F2] law does not prohibit the consideration of criminal convictions by employers when hiring applicants. Instead, the law dictates when an employer can investigate an applicant’s criminal conviction history and how the employer goes about denying employment because of the existence of a past conviction. [F3]

TIMING OF CRIMINAL CONVICTION INQUIRY. 

Applications. On an application for employment, the employer may not ask a question about an applicant’s conviction history until after a conditional offer of employment has been made. 

Interviews. An employer may not ask an applicant about her conviction history until after it has made a conditional offer of employment. 

Background checks. An employer may not run a background check on an applicant until after making a conditional offer of employment. 

PROCEDURE FOR DENYING EMPLOYMENT BASED UPON CRIMINAL CONVICTION. 

California’s Ban the Box (“BTB”) law establishes a four-step process to be followed when denying employment based upon a conviction. 

First step. If an employer learns of a criminal conviction, before denying employment it must conduct an individualized assessment. This assessment requires the employer to determine whether the conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant a position. This assessment must include an analysis of the Green factors: [F4] (i) the nature and gravity of the offense or conduct; (ii) the time that has elapsed since the offense or conduct and completion of the sentence; and (iii) the nature of the job sought.

Second step. After conducting the individualized assessment, if the employer makes a preliminary decision that the applicant’s conviction history disqualifies him from employment, the employer must notify the applicant of this preliminary decision in writing. This notification must include three things: (i) disclosure of the conviction which disqualifies the applicant; [F5] (ii) a copy of any conviction history report, such as a criminal background check report; and (iii) an explanation of the applicant’s right to respond to the notice of the preliminary decision before it becomes final and the deadline by which to respond. The employer must explain to the applicant that it may submit evidence questioning the accuracy of the conviction history report, as well as any evidence of rehabilitating or mitigating circumstances. 

Third step. The employer must wait five business days after providing notice before making a final decision. If, within the five business-day period, the applicant submits evidence of an error in the criminal conviction report, or provides rehabilitation or mitigation evidence, then the employer must consider that information before making a final decision. When an applicant outlines the specific steps she will take to obtain evidence to support her assertion of an inaccuracy, then the employer must give the applicant an additional five business days to respond to the notice. 

Fourth step. If the employer makes a final decision to deny employment based in whole or in part on the applicant’s conviction history, the employer must supply a second notice in writing. This notice must inform the applicant of (i) the final denial or disqualification, (ii) the existence of any procedure which the employer may have for challenging the decision or to otherwise request reconsideration, [F6] and (iii) the applicant’s right to file a complaint with the Department of Fair Employment and Housing (“DFEH”).

The California BTB law does not require employers to document their individualized assessment or the grounds for deciding not to hire a person, but doing so would be advisable. Documenting the due process steps will enable employers to show compliance with the law if and when the DFEH comes investigating.

CALIFORNIA’S DISPARATE IMPACT REGULATION. 

Informed California employers should be aware that this is not the only statewide law which governs the hiring process in connection with criminal records. Effective July of 2017, the DFEH promulgated a regulation which requires private employers in California to give consideration to whether their use of criminal history background checks has an adverse impact on the employment opportunities of those who are members of protected classes. [F7] (These protected classes include gender, race and national origin.) If an applicant is able to prove that an otherwise neutral criminal conviction disqualification policy has a disparate impact on a protected class, then the employer will need to demonstrate the policy is job-related and consistent with business necessity.

A bright line policy [F8] will need to prove that it can properly distinguish between those that do, and don’t, pose an “unacceptable level of risk.”

The DFEH states that bright line policies that disqualify for convictions of that are older than six years are subject to a “rebuttable presumption” that they are not sufficiently tailored to meet job-related inconsistent with business necessity affirmative defense. Put differently, if an employer chooses automatically to disqualify those convicted of crimes more than six years ago, it will need to offer hard scientific evidence to support its contention that employing older convicts still poses an “unacceptable level of risk” for the job at issue. 

An employer opting to go the individualized assessment route will need to provide certain enhanced due process procedures. The employer must provide the applicant with a reasonable opportunity to demonstrate that she should not be excluded from employment in the light of her particular situation. And the employer should give consideration to whether the additional information supplied by the applicant warrants an exception to the exclusion. 

Irrespective of the type of disqualification policy, before taking adverse action the employer must give the impacted individual notice of the disqualifying conviction and reasonable opportunity to present evidence that the information is factually inaccurate. If the applicant establishes the record is factually inaccurate, the now inaccurate information cannot be considered in the employment decision. 

Of course, if a criminal conviction disqualification policy does not have an adverse impact on protected classes, then there is not a need to justify the policy as job-related or consistent with business necessity. A California employer will, of course, want to remain aware of the absolute prohibitions, which forbid them from ever considering the following types of criminal records:

1. An arrest or detention that did not result in conviction;
2. Referral to or participation in a pre or post-trial diversion program;
3. Convictions that have been judicially dismissed or ordered sealed, expunged or eradicated;
4. Any criminal history associated with juvenile court; and
5. Any non-felony conviction for possession of marijuana two or more years ago.

No employer may consider these types of records when making employment-related decisions. [F9]

It is worthwhile to note that, in promulgating this regulation, the DFEH expressly adopted the Uniform Guidelines on Employee Selection Procedures published jointly by the Equal Employment Opportunity Commission, the Civil Service Commission, the Department of Labor, and the Department of Justice. These Guidelines impose certain obligations on employers throughout the country, but now it appears a failure to observe these obligations will qualify as a violation of California law in addition to federal law. For example, these Guidelines require employers to keep, and make available for inspection, records disclosing the impact its selection procedures have on the employment opportunities of individuals falling in protected classes.

Given the wholesale adoption of these Guidelines, considering the need to determine whether a neutral criminal conviction disqualification policy adversely impacts a protected class, and in light of the recent enactment of the statewide Ban the Box law, a prudent California employer might wish to retain legal counsel to refine and enhance its criminal conviction disqualification policy.

This publication is provided only for educational purposes; it should not be relied upon as legal advice, and it should not be used, in whole or in part, as a basis for establishing employment practices or policies, nor should it be used for resolving disputes or managing risk. Every reader’s circumstances are unique and legal advice should be obtained only from a lawyer with whom the reader has established an attorney-client relationship. All material contained within this publication is protected by copyright law and may not be reproduced without the express written consent of ESS.

[F1] The law went into effect January 1, 2018. 

[F2] The phrase “Ban the Box” refers to banning or prohibiting the use of a checkmark box on the employment application that asks the applicant if he has ever been convicted of a crime. Another term frequently used in this context is “Fair Chance Hiring.” This term is used to describe laws which do more than “ban the box.” Like the new California law, these Fair Chance laws also dictate when an employer can run a criminal background check and they provide the applicant with due process rights before the employer can refuse to hire because of the conviction. 

[F3] See, Cal. Gov. Code § 12952. Certain private employers are exempted from this law. For example, employers filling positions where they are required by state, federal or local law to conduct a criminal background check for employment purposes are not required to comply with this new BTB law. 

[F4] These factors were developed by a federal appellate court in 1975 when addressing a disparate impact racial discrimination claim brought by an applicant against the Missouri Pacific Railroad Company under Title VII of the Civil Rights Act of 1964. See, Green v. Missouri Pacific Railroad Co., 523 F.2d 1290 (8th Cir. 1975). In 2012, the Equal Employment Opportunity Commission encouraged employers to consider these factors to determine whether the potential for harm indicated by a past conviction is effectively linked to the risks for harm associated with a job at issue before refusing to hire someone because of her conviction. This was in the context of disparate impact claims, since it is not per se illegal under federal civil rights law to discriminate on the basis of criminal convictions. The Ban the Box movement has appropriated this analysis, however, and incorporated it into laws that are being enacted by states and cities around the country.

[F5] Arguably, this means disclosure of the specific conviction which disqualifies the applicant. If, for example, an applicant has two misdemeanor convictions and one felony conviction on her criminal background check report, it is not enough simply to give the entire report to the applicant without specifying which exact convictions are the ones that disqualify. Because of this specificity requirement, an employer is advised to be careful before it decides to let its Fair Credit Reporting Act (“FCRA”) Pre-Adverse Action letter pull double duty by treating that one letter as sufficient to satisfy both the FCRA and the California BTB law. The FCRA Pre-Adverse notice does not spell out which conviction is the conviction that is disqualifying in the employer’s mind; neither does it provide notice of the applicant’s BTB due process rights.

[F6] A close reading of the statute would appear to indicate that it does not actually require an appeals procedure, but rather, if the employer voluntarily chooses to provide such a process, then it must notify the applicant of the availability of that process. 

[F7] 2 CCR 11017.1.

[F8] The enactment of the new BTB law raises the question of whether a California employer can ever have a bright line policy, since it appears an individualized assessment is now always required.

[F9] See, e.g., Cal. Labor Code §§ 432.7, 432.8.