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“Ban the Box” – California Employers Are Cautioned When Using Criminal Records in Hiring Decisions

By now, California employers are probably aware of the “Ban the Box” movement sweeping the nation. Lawmakers and government agencies aim to provide applicants with a fair chance at employment by eliminating conviction history inquiries in background checks, interviews, and applications.  Over 100 cities and counties nationwide have adopted similar initiatives to prevent employers from inquiring about and then rejecting applicants from positions based on their criminal history.  President Obama has even endorsed the hiring reform, requiring that federal agencies delay inquiries into criminal records.

Earlier this year, the Department of Fair Employment and Housing proposed regulations, adding section 11017.1 to Title 2 of the California Code of Regulations, which will limit the use of criminal history as a consideration in employment decisions. The California Fair Employment and Housing Act (“FEHA”) currently prohibits harassment and discrimination on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and military and/or veteran status of any person.  The proposed amendments consider that inquiries into criminal history in employment decisions may constitute a violation of the FEHA if it adversely impacts a person on the protected categories above.

The proposed types of prohibited criminal history inquiries include: (1) An arrest or detention that did not result in conviction (Labor Code section 432.7); (2) Referral to or participation in a pretrial or post-trial diversion program (Id.); (3) A conviction that has been judicially dismissed or ordered sealed pursuant to law (Id.); and (4) A non-felony conviction for possession of marijuana that is two or more years old (Labor Code section 432.8).

Understandably, California employers may have reasons for looking into an applicant’s criminal history. For example, employers may wish to prevent fraud or theft, and they will want to prevent negligent hiring liability.  The proposed text would require employers to establish that consideration of criminal convictions is justifiable because it is job-related and consistent with business necessities.  As with most background searches and hiring practices, employers will be required to provide adequate notice of any background inquiries and a reasonable chance to dispute any factual inaccuracies.

San Francisco employers are already prohibited from asking questions about an applicant’s criminal records, including the following: arrests that did not result in conviction, unless charges remain pending; completion of a diversion program; sealed or juvenile offenses; offense that are more than seven years old from the date of sentencing; and offenses that are not misdemeanors or felonies, such as infractions.

Jackson Lewis P.C. © 2020National Law Review, Volume VI, Number 231


About this Author

Melissa Yen, Labor and Employment Litigator, Jackson Lewis, Los Angeles Law Firm

Melissa L. Yen is an Associate in the Los Angeles, California, office of Jackson Lewis P.C. She represents employers in all aspects of labor and employment litigation, including wrongful termination, discrimination, harassment, retaliation, and wage and hour matters in state and federal court as well as arbitration.

Ms. Yen regularly advises employers on employment-related issues, including high-risk terminations, employee discipline, lay-offs, disability accommodations, leaves of absence, employment policies and wage and...