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Ban the Box Ordinances – What an Employer Needs to Know

On Behalf of | Aug 10, 2017 | Business Litigation

Background on Ban the Box Legislation

Attempting to end existing discrimination towards job applicants, many cities have enacted the Fair Chance Initiative for Hiring or “Ban the Box” ordinances that aim to protect job applicants from being discriminated against by employers due to an applicant’s criminal history. Currently, more than 70 million U.S. adults hold records of arrest or conviction, meaning that the U.S. is home to the same number of people with criminal records as it is to four year college graduates. Research shows that conviction records reduce the likelihood of a job callback or offer by almost 50 percent, and are estimated to be responsible for 78 to 87 billion dollars in economic losses each year.

Responding to these problems, as of January 22, 2017, Los Angeles enacted a Ban the Box law which prohibits private employers of 10 or more employees from asking any questions regarding the applicant’s criminal history before making a conditional offer of employment. This precludes employers from asking about an applicant’s criminal history in a job application, in a job interview, independently searching for an applicant’s records or from running a criminal background check. There are some exceptions to the law, including where a criminal background check is required by law, the job requires the possession or use of a gun, someone convicted of a crime is prohibited by law from holding the position sought, or the law prohibits an employer from hiring an applicant convicted of a crime.

Furthermore, as of July 1, 2017, new California Fair Employment and Housing Act (“FEHA”) regulations went into effect regulating an employer’s ability to consider the criminal history of a California applicant/employee when making employment decisions. Under the new regulations, if an employer’s use of criminal records has an “adverse impact” on candidates in protected classes, the individuals may bring a discrimination claim.

What Should Employers Do?

Employers covered by FEHA (employers with five or more employees) should consider reviewing and modifying their policies and business practices to ensure they comply with the law. Specifically, employers should eliminate any blanket policies that exclude applicants because of their criminal records. Moreover, employers may want to consider removing any questions on an application for employment that asks about criminal history. Furthermore, training for hiring managers and human resources personnel should be conducted in order to ensure proper procedures for collecting and using applicants’ criminal conviction histories are followed.

Currently, employers are specifically prohibited from collecting or considering the following criminal histories when making employment decisions for California applicants/employees: an arrest or a detention that did not result in a conviction; referral to or participation in a pre-trial or post-trial diversion program; a conviction that has been judicially dismissed, sealed, expunged or statutorily eradicated pursuant to law; an arrest, detention, processing, diversion, supervision, adjudication or court disposition that occurred while a person was subject to the process and jurisdiction of a juvenile court of law; and certain marijuana-related convictions.

Guidelines for proper policies provided by the Equal Employment Opportunity Commission’s Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 include: considering the age of the offense, considering the relevance of to the job and giving the applicant the opportunity to review background check results, correct any errors, and provide evidence of rehabilitation. After obtaining information of a disqualifying criminal conviction, employers must notify the applicant if the information came from any source other than the applicant.