What is “Ban the Box” and Why is It Important? [Updated]

For many employers, including a question regarding criminal history or past felony convictions on job applications is standard. Generally, this question takes the form of a “yes” or “no” checkbox.

However, the “Ban the Box” movement is encouraging employers to consider excluding questions surrounding criminal history from job applications.

Here’s what you need to know about this.

“Ban the Box” Defined

According to the National Employment Law Project:

Nationwide, 35 states and over 150 cities and counties have adopted what is widely known as “ban the box” so that employers consider a job candidate’s qualifications first—without the stigma of a conviction or arrest record. Borne out of the work of All of Us or None, these initiatives provide applicants a fair chance at employment by removing the conviction history question from job applications and delaying background checks until later in the hiring process.

In recent years, the momentum behind policies like this one has increased dramatically. Today, many employers shy away from the process and offer what they believe is a much more personal and case-by-case basis of the analysis of an applicant’s arrest and conviction history.

“Ban the Box” and Fair Chance Laws

The goal of the Ban the Box movement is to defer criminal history inquisition until later in the hiring process. It aims to increase fairness for applicants with a criminal history and to reduce the traditional automatic disqualification from consideration for the job due to such a history.

The movement presumes that this method of consideration before disqualification will aid such applicants in entering or returning to the workforce.

The National Employment Law Project reports that 1 in 4 Americans have some arrest or conviction on their criminal record. For many, these records become a barrier to employment.

Some cities and states have already enacted legislation to eliminate criminal records inquiry checkboxes from pre-employment applications. These “fair chance laws” tend to require that the employer postpone questions regarding criminal history during the initial employment steps.

Instead, they call for questions about arrest history to wait until the potential employee passes the initial applicant screening process (during the job interview, for instance).

The intended result of this practice is to encourage employers to consider applicant-specific details regarding their criminal history. The state of Minnesota, for example, disallows inquiry into criminal history until the applicant has made it through the pre-employment interview or has received a conditional job offer, for example.

The California Fair Chance Act

The California Fair Chance Act  (AB 1008) went into effect on January 1, 2018. Here’s what you need to know about the law:

• The California Fair Chance Act contains several different restrictions and obligations that employers should be aware of.
• Organizations must take steps to ensure compliance if their job application forms ask prospects if they have been arrested or convicted of a crime.

The California Fair Chance Act also prohibits employers from considering certain information altogether. Additionally, these laws impose restrictions on how and when an employer may use an applicant’s conviction history when considering his or her candidacy for a job.

While a conviction history may still be used as a basis to rescind an offer, employers must go through a multi-step process before doing so.

Does This Mean That Criminal Convictions are Completely off the Table When Making Employment Decisions?

Not completely. The California Fair Chance Act includes some exemptions to the rules. After all, some federal and state laws and regulations require a criminal background check or prohibit individuals with criminal convictions from holding specific jobs.

The law makes exceptions for a few particular jobs, and instances when the law requires background checks.

For most employers, lawful hiring in the state of California now requires knowing when not to ask or even think about an applicant’s criminal history and how to consider a conditional hire’s conviction history properly.

Who is an Employer Under the Fair Chance Act?

For most employers, the answer is simple. If you employ five or more people, the law considers you an employer.

However, because of differences between the language of the Fair Chance Act and Chapter 4 of The Department of Fair Employment and Housing Act, which the Fair Chance Act is a part of, some employers may want to confirm their status with their attorneys.

When Does the Fair Chance Act not Apply?

The Fair Chance Act explicitly excludes some employment situations. Employers can find those exclusions listed in subdivision (d) of the act. This subdivision identifies those instances in which an employer is allowed to ask about an individual’s criminal history.

Employers should be aware that the following exclusions are limited to the position in question. The Fair Chance Act does not apply in the following circumstances:

1. To a position for which a state or local agency is otherwise required by law to conduct a conviction history background check.
2. To a position with a criminal justice agency, as defined in Section 13101 of the Penal Code.
3. To a position as a Farm Labor Contractor, as described in Section 1685 of the Labor Code.
4. To positions where an employer or agent thereof is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history. For purposes of this paragraph, federal law shall include rules or regulations promulgated by a self-regulatory organization as defined in Section 3(a)(26) of the Securities Exchange Act of 1934, as amended by 124 Stat. 1652 (Public Law 111-203), under the authority in Section 19(b) of the Securities Exchange Act of 1934, as amended by 124 Stat. 1652 (Public Law 111-203).

In brief, subdivision (d) stipulates that when another law, rule, or regulation requires the consideration of a background check or conviction history, an employer may comply with that requirement. Applicants seeking to join a criminal justice agency may also undergo investigation.

The meaning of subdivision (d) as it applies to farm labor contractors is less clear. Section 1685 of the Labor Code does not actually define a farm labor contractor; that definition is in Section 1682. Instead, Section 1685 permits farm labor contractors to screen applicants for supervisory positions differently.

The law requires them to affirmatively state (using a form prepared by the Labor Commissioner) that they have not committed sexual harassment according to a court or administrative body. The licensing authority for farm labor contractors may also inquire about sexual harassment-related convictions before granting a license.

A cautious interpretation of this provision would be that employers may ask a farm labor applicant who will hold a supervisory position to execute the form provided by the Labor Commissioner. Otherwise, such employers are not exempt from the requirements of the Fair Chance Act.

We recommend that when in doubt, employers assume the law applies and let someone else bear the costs of litigating over the nuances. Likewise, employers should limit their investigations of applicants within any of the subdivision (d) categories to those that are explicitly allowed by the law or regulation.

Ban the Box and the Equal Employment Opportunity Commission

One major proponent of the Ban the Box movement is the Equal Employment Opportunity Commission (EEOC). EEOC aspires to make criminal record inquiries applicant specific.

The EEOC also asserts the following:

• Employers should consider the severity of the crime reported by the potential employee (or by their background check) and how much time has elapsed since the conviction.
• Employers should refrain from denying employment to an applicant without due consideration of the details of the applicant’s specific criminal history.
• Employers should consider job-specific exceptions including positions involving vulnerable adults

With limited exceptions, the law prohibits specific actions by employers but also imposes obligations on employers. In most circumstances, an employer may not ask about any criminal history such as arrests or diversion programs at any point during the hiring process.

Further, an employer may only consider a person’s conviction after they have extended an offer of employment. In effect, the statute says that an individual’s past is not open for employer consideration until that employer has committed to hire.

Finally, employers who don’t like what they see in a prospective hire’s conviction history must complete a statutorily prescribed process before rescinding the offer.

Another concern of the EEOC is that due to the relatively high distribution of racial minority arrest and conviction rates in comparison to non-minorities, disqualification from hiring based purely on a “yes” or “no” basis regarding criminal history is in potential violation of Title VII of the Civil Rights Act of 1964.

This law states that it is unlawful for an employer “to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities…”

It is notable here that due to the non-normal distribution of conviction rates between minorities and non-minorities, disqualifying applicants due to the presence of a criminal history without considering the details of that history would tend to bar minorities from employment at a higher rate than non-minorities.

I’m an Employer – How Does Ban the Box Affect Me?

Many companies have proactively “banned the box” in an effort to avoid legal challenges and maintain the uniformity of their application process.

Some employers believe that there are already effective laws restricting discrimination and protecting the rights of job applicants. They think “banning the box” is another step down the slippery slope of creating a protected class of criminal offenders.

What Should Employers do to Comply with California’s Fair Chance Act? 6 Steps to Consider

California’s Fair Chance Act was born out of a desire to allow every member of society to have a chance at employment, despite criminal histories.

For most employers, their responsibilities and obligations under the Fair Chance Act are clear.

The best advice is to consult with your qualified legal counsel to determine which laws apply to you. And, when in doubt, comply with the most restrictive laws regarding criminal records and conviction histories.

In the meantime, make your team aware of the laws and the limitations and engage them in the compliance process. Here’s how:

1. Review all of the rules and regulations governing your organization’s practices. But don’t stop there. Make sure you are receiving regular updates on labor and employment laws, too.
2. Keep compliance top of mind. Regularly create internal memos to communicate your organization’s legal obligations clearly to each individual involved in the recruitment and hiring process. From the HR team to the copywriter who prepares your job advertisements, everyone should understand their responsibilities. If you are a multi-jurisdictional employer, weigh the costs versus benefits of having uniform processes that comply with the most restrictive rules or creating jurisdictional-specific forms and policies.
3. Remember that you are responsible for the actions of your team and any agent you authorize to act on your behalf. Regularly review your contracts and agreements with third parties to ensure their compliance as well as your own.
4. Check your application forms now. Make sure that your printed and online materials ask no questions regarding an applicant’s criminal history or arrest record.
5. Remove problematic language. Remove any language from your forms requiring the applicant to grant you permission to ask or investigate or waive any right concerning a criminal investigation.
6. Spread the word. Make sure your third-party background check company understands the law’s requirements and is prepared to help you comply.

What Other Criminal History Anti-Discrimination Laws Apply to California Employers?

Despite its comprehensiveness, the Fair Chance Act does not replace or supersede most of California’s other related laws and ordinances.

For example, many employers in Los Angeles and San Francisco must still comply with the often more restrictive local ordinances within those jurisdictions. Additionally, employers must still comply with the California Fair Employment and Housing Council’s Consideration of Criminal History in Employment Decisions Regulations, which became effective on July 1, 2017. Federal laws and guidelines are still in play, too.

The FEHC’s regulation relies on the U.S. Equal Employment Opportunity Commission’s 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records. That legislation requires employers to limit the use of criminal histories in making employment decisions when doing so would have a disparate impact on a protected class as defined by Title VII of the Civil Rights Act of 1946.

To further complicate matters, not every limitation applies to every employer. Jurisdiction limits some of these laws, and others only apply to employers of a specific size. There are exceptions and carve-outs, case law, and regulators’ statements of clarification to consider as well.

If you think all this seems a little complicated, you aren’t alone. California’s Fair Chance Act by itself combines “a ban the box” provision with a “don’t even think about it” component and adds an individualized assessment for good measure. Adding in other federal, state, and local requirements creates lots of opportunities for error.

How We Can Help

With an effective and compliant background checking program, the employer will still have access to the information needed to make intelligent hiring decisions.

If you decide to use background checks as a first step in your pre-employment screening, stay compliant with help from trusted, effective solutions from iprospectcheck.com Contact us today for a free consultation.

DISCLAIMER: The resources provided here are for educational purposes only and do not constitute legal advice. Consult your own counsel if you have legal questions related to your specific practices and compliance with applicable laws.