The Next Big Thing: Ban the Box
“Ban-the-box” refers to the question on the employment application that asks: “Do you have a criminal conviction?”
Effective July 1, 2014, California adopted a “ban-the-box” law prohibiting public employers from asking job applicants about criminal convictions until after the employer has determined that the applicant meets the minimum qualifications for the job. The law makes an exception for any position where a criminal background investigation is required by law, as well as for criminal justice agencies. California Labor Code § 432.9.
But knowing about Labor Code § 432.9 is only the start to staying out of legal trouble for employers. The next chapter is likely to be local cities and counties passing their own ordinances applying “ban-the-box” to private employers. For example, San Francisco’s “Fair Chance Ordinance” takes effect August 13, 2014, barring private employers with 20 or more employees and operations in the City & County of San Francisco from inquiring about a job applicant’s criminal history during the preliminary stage of the hiring process. Convictions more than seven years old, diversions, and juvenile adjudications can never be considered in San Francisco and only those “directly-related” to the position sought by the applicant can be considered at all. The San Francisco ordinance is chock full of procedural requirements to snare private employers, too. Examples: Before an employer can order a criminal background check, notice must be given to the applicant complying with several federal and state statutes. Job postings and advertisements must include a statement the employer will consider qualified applicants with criminal histories.
At present, few cities and counties have targeted private employers, but with the passage of statewide legislation for public employers, keep an eye out for this development.
Like many areas of employment law, this will be a minefield of legal problems for uninformed employers. Our practical, ready to implement suggestions to avoid legal claims for California employers, public or private, are as follows:
- Determine if and how “ban-the-box” applies to you as a public or private employer;
- Carefully study the local ordinances as there are likely to be important differences between them concerning the timing of any inquiry and limiting the inquiry about criminal history to crimes “directly related” to the particular job, or the staleness of the conviction;
- If so, review all employment applications hiring materials to determine whether they need to be modified to comply with “ban-the-box” rules where the company is hiring;
- Train managers involved in the interviewing process about when criminal history inquiries are restricted and permissible. This will require careful review of local ordinances, as some (e.g. San Francisco) only permit limited inquiries, even after a first person-to-person interview or conditional offer of employment.
This document is intended to provide you with general information about legal developments. The contents of this document are not intended to provide specific legal advice. If you have questions about the contents of this alert, please contact Peter Glaessner at 415-697-3461 or at firstname.lastname@example.org. This communication may be considered advertising in some jurisdictions.