California employers, does your job application form ask prospects if they have been arrested or convicted of a crime?
If so, it may be you who is breaking the law. A new law took effect on January 1, 2018, that prohibits employers from asking about or considering several types of information related to an applicant’s criminal history. If you haven’t recently updated your hiring policies and procedures, you could be putting your company at risk.
Has California’s laws regarding hiring practices changed in the past 12 months? Yes, a lot.
Beyond Ban the Box: California Tells Employers Don’t Ask About Applicant’s Criminal Background
- Fair Chance hiring Act California contains several different restrictions and obligations that employers should be aware of.
- Has your organization taken steps to ensure that you are in compliance?
- Does your job application form ask prospects if they have been arrested or convicted of a crime?
- This is an intro to 7 articles about California’s Fair Chance Act – Ban the Box
New Anti-discrimination Efforts are Aimed at Protecting Those with Criminal Histories
In the past several years, there has been a growing shift toward protecting those with criminal histories, including arrests and convictions, from discrimination in the hiring process. As part of that effort, California and 29 other states have passed what are known as Ban the Box laws. These laws prohibit an employer from including questions about an applicant’s criminal background on their standard job applications.
In short, the traditional “Have you ever been arrested or convicted of a crime” question with a yes or no box beside it has been banned.
The Effort Goes Beyond Just Banning a Single Question on an Application.
More recent laws, including Fair Chance Act California, also prohibit 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. You might call this the law’s “don’t even think about it” provision.
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. A “no take-backs” provision?
Certain information cannot be used against an applicant to justify denial of employment, and an applicant’s conviction history must be individually assessed.
Does this mean that criminal convictions are completely off the table when making employment decisions?
Not completely. The Fair Chance Act California includes some exemptions to the rules. After all, competing federal and state laws and regulations often require a criminal background check or prohibit individuals with criminal convictions from holding specific jobs. The law makes exceptions for a few specific job types and for those instances when background checks are required by law or regulation.
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 properly consider a conditional hire’s conviction history.
What Should Employers do to Comply with California’s Fair Chance Act?
Your compliance should begin today. You should start by contacting your legal advisor to discuss your rights and obligations under the new law. Then, if you are an employer with 5 or more employees operating in the state of California and don’t qualify for an exception to the law,
- 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.
- 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.
- Make sure your third-party background check company understands the law’s requirements and is prepared to help you comply.
Cautionary Note: CRD Sues Grocer Over FCA Violations
On Dec. 21, 2023, The California Civil Rights Department (CRD) issued a public release that it filed a lawsuit against Ralphs Grocery Company. Ralphs is a subsidiary of Krogers that allegedly committed violations of the FCA at its stores across Southern California, resulting in the wrongful denial of employment to hundreds of applicants.
The FCA, which was passed to provide people with criminal records access to employment opportunities, was enacted in 2018. This law applies to any employer in California with at least five employees and prohibits them from asking about criminal history information on job applications. Under the FCA, employers may not ask about criminal history until after they have made conditional employment offers.
According to the CRD, Ralphs committed multiple violations of the FCA, including the following:
- Inquired about criminal history on job applications
- Failed to individually assess conviction records
- Rescinded job offers based on convictions wholly unrelated to the job duties, including out-of-state marijuana possession convictions and excessive noise violations
- Did not provide adequate notice of the reasons why the company rescinded conditional employment offers
- Failed to inform 75% of the applicants of their right to challenge the decision
- Provided a fax line number to other applicants who were told about their right to contest the decision without instructions of how to challenge the decision
The CRD filed its lawsuit in the Los Angeles County Superior Court. In its lawsuit, the CRD is seeking the following remedies:
- Trial by jury
- Compensatory damages to include lost wages, lost benefits, and emotional and mental distress damages
- Punitive damages
- Injunction to prevent additional violations of the FCA by Ralphs
- Any other relief the court believes is appropriate
Ralphs has not yet filed its response.
While this case has not yet been decided, it provides a cautionary note for employers to ensure they comply with the FCA and other fair chance laws in California.
Employers that violate the FCA can face substantial penalties and liability.
To maintain compliance, employers should remove any questions about criminal records from their applications, wait to conduct criminal background checks until after they have made conditional employment offers, individually assess convictions as they relate to the duties of the job, and provide appropriate notice to the applicants of their rights under the FCA and federal law to contest an adverse employment decision.
Modified Regulations Under the FCA
The California Civil Rights Commission modified Cal. Code Regs. tit. 2, § 11017.1, effective Oct. 1, 2023. These are regulations under the FCA.
These modifications led to multiple changes in how employers must comply with the FCA, including:
Definition Modifications
The definitions of applicant and employer were changed and expanded.
An applicant is now defined as including current employees who are being considered for promotions or transfers. It also includes current employees who will undergo a review because of a change in management or ownership.
Employers now include joint or direct employers, third parties that evaluate the criminal histories of applicants for the employer, entities that serve as agents for the employer, staffing agencies, and entities that are provided workers from an availability list.
Know Before You Hire
Modifications to Considering Convictions Before a Conditional Job Offer
Employers should not ask an applicant about criminal history before making a job offer. They should not inquire into an applicant’s criminal history in any way, including through internet searches or background checks, before making a conditional employment offer.
An employer can’t consider a voluntarily disclosed conviction until after making a conditional employment offer.
Employers are prohibited from including language in job postings or applications that discourages individuals with criminal histories from applying or indicates they won’t be considered.
Employers can’t use the applicant’s failure to disclose a conviction against them if the employers inquired about their record before making a conditional employment offer.
Changes to Rules for Rescinding Conditional Job Offers based on Convictions
Under the modified regulations, employers are prohibited from ever considering an arrest that didn’t lead to a conviction, juvenile adjudications, expunged records, or misdemeanor marijuana convictions older than two years.
Employers that want to rescind an employment offer based on an applicant’s criminal record learned through any means must first individually assess it as it relates to the job duties. This assessment must include a consideration of the following:
- Severity/nature of the offense
- Amount of time that has elapsed since the offense
- Job duties
The employer must complete this individual assessment before sending a pre-adverse action notice.
Once the preliminary notice is sent, the employer must provide the applicant with a reasonable time to respond, which is two business days following an emailed notice, five business days following a mailed notice in California, 10 business days after a notice mailed to an applicant in a different state, or 20 business days following a notice mailed to an applicant in another country.
The applicant can respond with evidence the information is wrong or demonstrating their rehabilitation. Employers must consider evidence or rehabilitation or mitigation before making a final employment decision.
If a final decision to deny employment is made, the employer must notify the applicant in writing and include a copy of the applicant’s rights. They must inform the applicant of their right to appeal the decision to the California Civil Rights Commission.
Stay Tuned, To Learn More About Fair Chance Act California
As a compliance-focused background screening company, iprospectcheck is dedicated to helping you deploy best practices for all of your hiring decisions.
To help keep you informed, we’re going to share what we’ve learned about each of the provisions of the Fair Chance Act with you over the next several weeks. We’ll examine which employers and applicants are covered by the law, what employers need to do to stay in compliance, and why legislation of this type are gaining traction across the nation.
We hope you’ll visit us again soon to find out what else you need to know about the Ban the Box movement and the Fair Chance Act California.
DISCLAIMER: The resources provided here are for educational purposes only and do not constitute legal advice. Consult your counsel if you have legal questions related to your specific practices and compliance with applicable laws.
