Enhanced California Ban the Box Law Proposed

An enhanced California ban the box law is under consideration at the legislature.

While state law already includes a provision regarding background checks of job applicants, the California Fair Chance Act of 2023 would “revise, recast and expand” on these restrictions.

As a reminder, under the California Fair Employment and Housing Act, employers with five or more employees are barred from several actions related to background checks of job seekers, including:

• Asking about conviction history on job applications
• Asking, or considering, the conviction history of an applicant until they have received a conditional offer

California law also requires employers that reject an applicant because of their conviction history to make an individualized assessment of whether that background has a direct and adverse relationship with the specific duties of the job.

Finally, it should be noted that California in October 2021 stepped up enforcement of its ban the box law after finding 500 violations in a one-day review.

California Ban the Box: 2023 Fair Chance Act

If enacted, the enhanced California ban the box law would revamp hiring practices for most employers in the state.

Notably, the bill proposes that employers could only examine an applicant’s criminal background in three circumstances. This would be permissible when a federal law/regulation or state law:

• Requires an employer to get the information
• Prohibits an individual with a certain criminal history from holding the job (regardless of whether the conviction has been expunged, sealed or dismissed)
• Prohibits an applicant with a particular conviction from being hired

The bill would also bar employers from rejecting an applicant due to their background without first putting together an individualized assessment to determine whether that history has a direct and adverse relationship to the position.

Should lawmakers pass the enhanced California ban the box law, it would also prohibit employers from taking certain actions based on conviction history, regardless of how it was obtained, including:

• Ending an interview
• Rejecting an application
• Otherwise terminating the application process

Meanwhile, the bill would also make it illegal to take adverse action against an existing employee based on their criminal record.

If eventually passed, the law would require employers to display an associated labor law poster.

Ban the Box Laws

The growth of ban the box laws has slowed in recent years. But that could be because so many jurisdictions now have them.

More than 150 cities, along with 37 states, have some form of ban the box laws on the books, according to the National Employment Law Project.

Ban the box laws often:

• Limit what employers can ask job applicants before an initial interview
• Set a point in the application process when employers may ask about an applicant’s criminal history
• Prohibit how far in the past an employer may inquire about an applicant’s criminal history
• Prevent ads for jobs from excluding those with a criminal history

As is generally the case with employment laws, they can vary widely by jurisdiction.

And California’s existing ban the box law says that once an offer has been made, an employer cannot rescind it simply because of an applicant’s criminal past. Employers must also consider:

• The nature and gravity of the offense
• The time that has passed since the conviction and completion of the sentence
• The nature of the job

The idea behind these laws — sometimes called fair chance legislation, as is the case in California — is to give those who have run afoul of the law a better chance to earn a job and not have past misdeeds hold them back from employment opportunities.

Conclusion

While the enhanced California ban the box bill still has hurdles to clear before becoming law, it’s always worthy to note that the state is often at the forefront of employee-friendly regulations and employers with locations there should keep an eye out in case it’s passed.

This Employment Law News blog is intended for market awareness only, it is not to be used for legal advice or counsel.