More “Ban the Box” Laws; What Employers Need to Know

By Jennifer L. Lippi, J.D., SPHR

There are several local laws and a possible new state law that severely limit employer inquiry into criminal convictions.  On January 22, 2017, Los Angeles became the second city in California, after San Francisco, to adopt a “Ban the Box” ordinance that bars employers from inquiring about a job applicant’s criminal history until later in the hiring process.  Among other things, this means removing the check box questions common on many employment applications that ask, “Have you ever been convicted of a felony?” 

San Francisco’s Fair Chance Ordinance

San Francisco’s Fair Chance Ordinance took effect on August 13, 2014.  In general, the Ordinance prohibits employers from making any inquiry regarding criminal history until after an initial job interview.  Employers may ask about an applicant’s criminal history only after the first job interview or after a conditional offer of employment.  The Ordinance also prohibits employers from at any time inquiring into or taking an adverse action based on any of the following:

1. An arrest not leading to a conviction;
2. Participation in or completion of a diversion or a deferral of judgment program;
3. A conviction that has been judicially dismissed, expunged, or otherwise rendered inoperative;
4. A juvenile conviction;
5. A conviction that is over seven years old from the date of sentencing; or
6. An offense that is other than a felony or a misdemeanor, such as an infraction.

Furthermore, prior to conducting any criminal history inquiry, the employer must provide the applicant or employee with a written notice of their rights under the Ordinance.  The Ordinance also requires that the employer conduct an individualized assessment of the nature of the offense as it relates to the specific position at issue.  The offense may only be considered if it has a “direct and specific negative bearing on that person’s ability to perform the duties or responsibilities necessarily related to the employment position.”  In making this determination, the employer must consider whether the position “offers the opportunity for the same or a similar offense to occur” and whether “circumstances leading to the conduct for which the person was convicted will reoccur.”  The individualized assessment also requires consideration of the time that has elapsed since the conviction and any evidence of mitigating factors or rehabilitation.

If a San Francisco employer decides to take adverse action based on criminal history information, they must first notify the applicant or employee in writing of the intended decision, and allow the applicant or employee seven (7) days to respond with any evidence of inaccuracy in the information or to describe any evidence of inaccuracy.  The employer must also provide a copy of the background check or criminal conviction report.  Upon receiving such response, the employer must wait an additional reasonable time to reconsider the prospective adverse action in light of the new information.  After the employer has allowed the employee adequate time to respond, the employer may take final adverse action based upon the conviction history, but must notify the employee that the final adverse action was taken because of the conviction history. 

Los Angeles Fair Chance Initiative For Hiring

Los Angeles has taken a different and more rigid approach than San Francisco with its Fair Chance Initiative.  While the San Francisco Ordinance prohibits any type of criminal history inquiry until after the initial job interview, the Los Angeles Ordinance prohibits employers from inquiring about criminal histories until after a conditional offer of employment has been made.

The Los Angeles Ordinance prohibits:

1. Asking any question on a job application about an applicant’s criminal history;
2. Asking about or requiring disclosure of an applicant’s criminal history during a job interview; and
3. Independently searching the internet for criminal conviction history or running a criminal background check before a conditional offer of employment has been made.

The Los Angeles Ordinance has a very specific “Fair Chance Process” that must be followed if an adverse action is taken as a result of an inquiry into criminal history.  Prior to taking any adverse action, the employer must:

1. Perform a written assessment that links the specific aspects of the applicant’s criminal history with the risks inherent in the duties of the position. At a minimum, the employer must consider the factors identified by the Equal Employment Opportunity Commission (“EEOC”) and any rules or regulations issued by any agency designated with enforcement responsibilities;
2. Provide the applicant with written notice of the proposed action, a copy of the written assessment, and any other information supporting the employer’s proposed adverse action;
3. Wait at least five (5) business days after the applicant is informed of the proposed adverse action before taking any adverse action or filling the position, in order to give the applicant an opportunity to respond;
4. Consider the applicant’s additional information or documentation and perform a written reassessment of the proposed adverse action.
5. If the employer elects to continue with the adverse action after a reassessment, it must notify the applicant of the decision and provide the applicant with a copy of the written reassessment.

The San Francisco and Los Angeles Ordinances also contain detailed disclosure, posting, and recordkeeping requirements. 

Assembly Bill 1008 (“AB 1008”)

But wait, there is more.  Don’t do business in San Francisco or Los Angeles?  You may still not be off the hook.  There is a new bill pending in the California legislature that may “Ban the Box” for most employers in California.  AB 1008, as proposed, makes it an unlawful employment practice for an employer to include on any application for employment any question that seeks disclosure of an applicant’s criminal history, or to inquire into or consider the conviction history of an applicant until that applicant has received a conditional offer of employment. 

AB 1008 also proposed a “Fair Chance Process.”  An employer that intends to deny an applicant the position based solely or in part because of the applicant’s criminal history must make an individualized assessment of whether the applicant’s conviction history has a direct adverse relationship with the specific duties of the job that justify denying the applicant the position.  In making the assessment, the employer must consider the nature and gravity of the offense or conduct, the time that has passed since the offense, and the nature of the job held or sought.  In making the individualized assessment, employers must be consistent with the EEOC guidelines surrounding conviction records in employment. 

If the employer makes a preliminary decision that the applicant’s criminal history disqualifies him or her from employment, the employer shall notify the applicant of the decision in writing.  The notice must contain all of the following:

1. Identify the conviction that is the basis for the potential denial or disqualification;
2. Provide a copy of the conviction history report, if any;
3. Provide examples of mitigation or rehabilitation evidence that the applicant may voluntarily provide; and
4. Provide the applicant notice of the right to respond within ten (10) business days.

The applicant has ten (10) days to respond with information that challenges the accuracy of the information in the notice or include mitigation or rehabilitation evidence.  The employer is required to consider the information submitted by the applicant prior to making a final decision. The bill also states that an employer may not disqualify an applicant from employment if they showed evidence of mitigation or rehabilitation.

If an employer makes a final decision to deny employment because of a prior conviction, a second notice must be given that includes all of the following:

1. The final denial or disqualification;
2. Any existing procedure the employer has to challenge the decision or request reconsideration;
3. Whether the applicant may be eligible for other employment or occupation with the employer;
4. The earliest date the applicant may reapply for a position of employment; and
5. The right to file a complaint with the Department of Fair Housing and Employment (“DFEH”).

We will continue to monitor the status of AB 1008.  However, in the meantime, if you are located in or do business in San Francisco or Los Angeles, you should revise all job application forms, advertisements, and job postings. Hiring staff should be trained as to what questions may be asked during the initial interview and how to process an individualized assessment when evaluating an applicant’s conviction history.