Ban the Box Law
Last year, Governor Jerry Brown signed A.B. 1008, which is often referred to as the Ban the Box law. This law makes it illegal for employers with five or more employees to ask a job applicant about their criminal record until a job offer has been made. As a result, employers are no longer allowed to ask about an applicant’s criminal convictions on job applications or during the interview process.
The Importance of the Ban the Box Law
California is the 10th state to pass legislation protecting job seekers with criminal records from discrimination. Nearly one in three adults in California have a criminal record, and about one-half of children in this state have parents with a criminal record. Before this law was passed, it was estimated that a criminal conviction could result in a 50% drop in the likelihood of receiving a call back or interview from a potential employer. Unfortunately, the employers that chose not to hire these individuals were missing out on valuable employees. Studies have shown that adults with criminal convictions have lower rates of turnover and higher rates of promotion. These studies also show that working with someone with a criminal conviction can reduce the stigma surrounding criminal records by approximately 15%.
After looking at these statistics, it is not hard to see why California lawmakers decided to pass this groundbreaking law. Now that Ban the Box has been passed, these hardworking adults have a chance to start over and provide for their families after being convicted of a crime.
When Can Employers Ask About An Applicant’s Criminal Record?
As previously mentioned, employers are not allowed to ask applicants about their criminal record until a conditional job offer has been made. At this point, the employer is permitted to run a background check or ask about the applicant’s criminal record. However, if the employer discovers that the applicant has a conviction on his record, this should not automatically disqualify the applicant. Instead, the employer must conduct an individualized assessment to determine if the conviction will interfere with the applicant’s ability to perform the job duties.
During this individualized assessment, the employer should consider:
- The nature of the offense
- The time that has passed since the applicant was convicted of the crime
- The sentence completed by the applicant
- The duties of the job
If the conviction is in some way related to the duties of the job, the employer can revoke the job offer. For example, a candidate who has been convicted of committing a crime against children should not be hired at a daycare center.
It’s important to note that although a criminal conviction can be taken into consideration when deciding whether or not to revoke a job offer, other items on an applicant’s criminal record cannot. This includes arrests that were not followed by convictions, convictions that have been sealed, dismissed, or expunged, and the participation in a diversion program. This means that unlike a conviction, if one of these items appears on an applicant’s background check, it cannot factor into an employer’s decision to revoke an applicant’s job offer.
What Happens After An Employer Revokes A Job Offer?
Applicants will not be left in the dark if their job offer is being revoked because of a criminal conviction. Employers have a legal obligation to notify employees of their decision in writing as soon as possible. The employer does not need to explain why the conviction disqualifies the candidate from the position. But, the employer must list the convictions that contributed to their decision and include a copy of the conviction report. They also have a legal obligation to inform the applicant of their right to respond to this notice.
Applicants have five days to respond to this written notice before the employer’s decision is finalized. This gives applicants an opportunity to explain how they have changed since being convicted of a crime and why it should not be held against them. This also gives them the opportunity to notify the employer if there is an error in the conviction report used to make this decision. If the applicant chooses to respond, the employer must consider the applicant’s statement and any additional evidence they provide when determining whether or not to make their decision final.
If the employer still would like to revoke the job offer, they must notify the applicant in writing once more. This time, the decision is final and the applicant does not have the legal right to respond to the notice.
Exceptions to the Ban the Box Law
The Ban the Box law is supposed to apply to all employers in the state of California with five or more employees, however there are a few exceptions to this rule. Some employers, such as specific government agencies, do not need to comply with this law. However, most employers within the private and public sector are required to comply.
Has a potential employer discriminated against you because of your criminal record? If so, seek legal representation as soon as possible. Everyone deserves a second chance. The experienced employment law attorneys at Shegerian & Associates are ready to fight to ensure your past does not affect your future. Contact us today to discuss your case by calling 1-800-GOT-FIRED.