California's State and Local Ban-the-Box Laws Restrict Use of Criminal History

California's statewide ban-the-box law, as of Jan. 1, 2018, requires employers with five or more employees to follow certain procedures when requesting and using criminal history information for pre-hire purposes.

Employers must:

  • Wait until after a conditional offer of employment to inquire about criminal history, which means asking applicants directly whether they have been convicted of a crime, ordering a criminal history background check, or making any other inquiry about an applicant's criminal history. This should take place at a later time, such as after an interview or a conditional offer.
  • Conduct an individualized assessment of an applicant's conviction to determine whether it has a "direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.
  • Before adverse action is taken, the federal Fair Credit Reporting Act requires that employers follow certain requirements if the decision is based, in whole or in part, on the information contained in a background check, also known as a Consumer Report obtained from a background check provider also known as a Consumer Reporting Agency.
  • The notice must identify the conviction, include a copy of the completed report and state the deadline for the applicant to provide additional information, such as evidence of inaccuracy.
  • After waiting the reasonable period of time, notify the applicant of any final adverse action. The new California ban-the-box law requires the adverse action notice to advise of the applicant’s right to file a complaint with the Department of Fair Employment and Housing.

Next Steps for Employers:

Employers that use criminal history information as part of their pre-hire process should consider a review of their policies, procedures, notices and other related documents to ensure that:

  • Inquiries about criminal history information are made at the appropriate time;
  • Applicants receive the appropriate notices and time to consider the information before the employer makes a final decision;
  • Managers, supervisors and human resources professionals do not ask about or consider prohibited substantive criminal history information, know how to respond to any voluntary disclosures of such information, and individually assess the criminal history at issue;
  • Workplace notices are posted; and
  • Solicitation and job advertisements are drafted properly.

Additional states that have banned the box include:

Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island and Vermont.

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