WORKPLACE LAW – Ban the Box

Question: I keep hearing the phrase “ban the box.” What does that mean and why is it relevant to my business?

Answer: “Ban the box” refers to removing the “check boxes” and questions on employment applications that ask about an applicant’s criminal conviction history. “Ban the Box” legislation started in 2013 to reduce barriers to employment for people with conviction histories.

With some exceptions, beginning January 1, 2018, California employers with five or more employees are prohibited from: (1) including questions about an applicant’s criminal history on an employment application, (2) inquiring about or considering an applicant’s conviction history until after a conditional offer of employment is made, and (3) considering, distributing, or disseminating information related to specified prior arrests, diversions, and convictions when conducting criminal background checks.

Once a conditional offer of employment has been made, employers can ask about conviction history. However, when conducting the background check, an employer cannot consider, distribute, or disseminate information related to:

• arrests or detentions that did not result in conviction,
• referral to or participation in pretrial or post-trial diversion programs,
• convictions that have been sealed, dismissed, expunged or statutorily eradicated,
• juvenile court arrests, detentions, proceedings, diversions, supervisions, adjudications, or court dispositions, and
• non-felony convictions for possession of marijuana that are two or more years old.
In deciding whether to withdraw a conditional offer of employment based on the applicant’s conviction history, new Government Code section 12952 requires employers to follow specific procedures.

First, employers must do an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship to the specific duties of the job that justify denying the applicant the position. In doing so, the employer is required to consider (1) the nature and gravity of the offense or conduct, (2) the time that has passed since the offense or conduct and completion of the sentence, and (3) the nature of the job held or sought.

Second, if the employer makes a preliminary decision that the applicant’s conviction history disqualifies the applicant, the employer must notify the applicant in writing. The notice provided to the applicant may, but is not required to, justify or explain the employer’s reason for making the preliminary decision. The notice must:
• identify the disqualifying conviction that is a basis for the preliminary decision,
• include a copy of the conviction history, if any, and
• explain the applicant’s right to respond before the decision becomes final and the deadline by which to respond.

Third, after the employer provides the written notice of preliminary decision, the applicant has five business days to respond. If the applicant timely notifies the employer in writing that the applicant disputes the conviction history and is taking action to obtain support for that assertion, the employer must provide five additional business days to respond. Upon receipt of additional information, the employer must consider the applicant’s response. If the employer still decides to deny employment based on the conviction, the employer must notify the applicant in writing and include notification of any existing procedure the employer has in place to challenge the decision. The notice must also inform the applicant of the right to file a complaint with the Department of Fair Employment and Housing.

Employers are encouraged to carefully review their job applications, interview practices, and procedures for conducting criminal background checks to ensure their hiring practices comply with the law.