"Ban the Box" Now Applies to all Employers with Five or More Employees

Several years ago, California passed a “ban the box” law that was limited to state agencies, cities and counties. Effective January 1, 2018, California extended the “ban the box” law to private employers with five or more employees. The new addition to the California Fair Employment and Housing Law is codified at Government Code section 12952. 

Section 12952 also requires a multi-step process for requesting and considering an applicant’s criminal conviction history, only after a conditional job offer is made. 

            1.         What Can Be Considered, and When: Employment applications cannot include any questions that would disclose an applicant’s conviction history prior to a conditional offer of employment.  Similarly, employers cannot inquire into or consider the conviction history of an applicant before making a conditional offer of employment.  Certain information, such as specified arrests not resulting in conviction, referral to diversion programs, and sealed convictions, cannot be considered, distributed or disseminated at all. 

            2.         Individualized Assessment: If the employer intends to deny an applicant a position based solely or in part on the applicant’s conviction history, the employer must make an individualized assessment, based on factors set forth in Government Code Section 12952, of whether the applicant’s conviction history has a direct and adverse relationship with specific duties of the position that justify denying the applicant the position. The employer may, but is not required to, commit the results of this individualized assessment to writing. 

            3.         Preliminary Decision Notification to Applicant: The employer must then notify the applicant in writing of its preliminary decision, including attaching a copy of the conviction history report, identifying the conviction(s) being used as the basis of the preliminary decision to rescind the offer, and providing the applicant with a detailed explanation of his or her right to respond to the notice before it becomes final and the deadline to do so, which must be at least five business days out. The notification may, but is not required to, outline the employer’s justification. 

            4.         The Applicant’s Response: If the applicant timely informs the employer that he or she disputes the accuracy of the conviction history report and is taking specific steps to obtain evidence to support this assertion, the applicant will have an additional five business days to respond to the notice. 

            5.         Consideration of Evidence Submitted by the Applicant: The employer must consider the information submitted by the applicant disputing the accuracy of the conviction history report before making a final decision. 

            6.         Notification of Final Decision: If the employer makes a final determination to deny the applicant the position, the employer must notify the applicant in writing of the final denial, any procedures the employer has for the applicant to challenge the decision or request reconsideration, and the applicant’s right to file a complaint with the Department of Fair Employment and Housing. The employer may, but is not required to, explain its reasoning for the denial.