California Lawmakers Pass Statewide ‘Ban-the-Box’ Law

 

Roy Maurer By Roy Maurer September 21, 2017
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California may become the 10th state to require private-sector employers to "ban the box" on employment applications asking about applicants' criminal conviction histories.

A.B. 1008, sponsored by Assemblyman Kevin McCarty, D-Sacramento, would bar most companies from asking about a prospective employee's criminal conviction history on their initial job application or during the hiring process until after a conditional job offer has been made. The bill was sent on to Gov. Jerry Brown for his signature or veto.

[SHRM members-only toolkit: Conducting Background Investigations]

McCarty said that the intent of the bill is to give applicants with a criminal record the opportunity to be judged on their qualifications and not their criminal histories. "After a conditional offer has been made there is nothing preventing an employer from conducting a background check," he said. "Increased access to employment for people with conviction histories is essential to helping formerly incarcerated people support themselves and their families, strengthen communities, boost the economy and reduce recidivism."

Roughly 7 million Californians have an arrest or conviction record that can undermine their efforts to obtain employment, according to the bill.

Nationwide, 29 states and over 150 cities and counties have adopted ban-the-box laws, and in 2013, California passed a similar law that applied to state agencies, cities and counties. Nine states and 15 major cities, including Los Angeles and San Francisco, have adopted ban-the-box hiring laws that cover both public- and private-sector employers.

Brown has until Oct. 15 to sign A.B. 1008. The chances of the governor signing the bill increased significantly after the California Chamber of Commerce and a coalition of employer groups dropped their opposition to it, based on several amendments added in the state Senate, explained Benjamin Ebbink, an attorney with Fisher Phillips in Sacramento and former chief consultant to the California State Assembly Committee on Labor and Employment.

"I think this is somewhat inevitable here in California," he said. "These ban-the-box provisions are popular and there is a wave of these laws at the state and local level. If A.B. 1008 is not signed, I think a similar bill will be signed in the near future."

Many of the amendments added to the bill before its passage were made "so as to not dramatically change the underlying law of what can and cannot be considered during an employment screen," Ebbink said.

The amendments to the bill included:

  • Exempting employers with fewer than five employees.
  • Striking the provisions of the bill that prohibited an employer from considering misdemeanor convictions or infractions and felony convictions over seven years old when conducting an employment screen.
  • Striking the requirement that individualized assessments be made in writing and adhere to the federal 2012 Equal Employment Opportunity Commission guidance and state Fair Employment and Housing Council (FEHC) guidance. However, employers intending to deny an applicant a position of employment because of the applicant's prior criminal conviction must make an individualized assessment of whether the applicant's conviction history has a direct and adverse relationship with the specific duties of the job and then take into account the nature and gravity of the offense or conduct, the time that has passed since the offense or conduct and completion of the sentence, and the nature of the job.
  • Removing the requirement that an employer justify or explain the reasoning for making its preliminary or final decision denying the applicant employment based on his or her criminal history.

"Employers still have concerns that this bill places them in an untenable position," Ebbink said. "On one hand, if they don't hire an individual, they face a discrimination claim. On the other hand, if they do take a chance on an individual and something goes wrong, they are subject to liability for negligent hiring and retention. I think there is concern that this places employers in a box where they will face litigation. It would have been nice if there was some provision of qualified immunity against tort liability for employers that decide to hire someone despite their criminal history."

There is also concern about how the law would relate to or overlap with the new FEHC regulations on criminal history and adverse impact, and whether employers will be confused about their obligations between the two, Ebbink said.

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