Understanding California’s Ban the Box Laws

While it is admittedly never great to have a criminal history, the fact remains that the criminal law is an imperfect system, and people make mistakes. That shouldn’t forever mark you as unfit for employment. That concept is at the heart of California’s “ban the box” initiative, which limits how much a potential employer can learn about your criminal history.

Restrictions on Criminal History Inquiries

Under the law, if an employer has 5 or more employees, it cannot ask an applicant about his or her criminal history until after an offer of employment has been made, although the offer of employment can be conditional.

And while an employer can take back a previously made offer of employment based on what the employer learns about an applicant’s criminal history, the employer must do an individual assessment of the employee, before doing so (that is, the employer cannot just automatically withdraw a previously made employment offer, based on what the employer finds in a criminal history). The employer must demonstrate that whatever was found in the criminal history, would have an adverse impact on the applicant or employee’s ability to do the job.

The law is very powerful in protecting applicants. So much so, that it doesn’t just prohibit an employer from asking about an applicant’s criminal history or pulling an applicant’s criminal background. It also prohibits the employer from doing its own searches, such as through commonly used online sources—even if the employer isn’t specifically looking for a criminal background.

The employer is prohibited from using  information that the employee may have voluntarily provided. The employer is also prohibited from making statements that may imply that it will flatly not consider people with criminal histories (for example, by saying “clean record required,” or similar language).

Not Just New Hires

The law doesn’t just apply to applicants to new jobs. It also applies to current employees, who are applying for new positions with the same employer, or existing employees who may be forced to undergo a new background check because of a company’s change in management or ownership.

Failure to Disclose

The employer also cannot use the fact that an employee didn’t disclose something in his or her criminal history to the employer before the employer did a background check.

So, for example, if an employee had a drug conviction, and said nothing, and then a background check revealed the drug conviction, the employer could not then fire, or not hire, the applicant, because of the applicant’s failure to tell the employer about the drug conviction.

Exceptions

There are some exceptions to the law, such as with jobs where the law may require a background check (for example, law enforcement, or certain jobs that interact with children).

Contact the San Jose employment lawyers at the Costanzo Law Firm today if you have had a criminal background used unfairly against you, or you have been unfairly denied employment.

Source:

calcivilrights.ca.gov/fair-chance-act/#:~:text=This%20law%20generally%20prohibits%20employers,%E2%80%9CBan%20the%20Box%E2%80%9D%20law.