In this installment of California Employment News, Ryan Abernethy and Nikki Mahmoudi provide an essential overview of California’s Fair Chance Act—also known as the Ban the Box law. Learn what employers need to know about using criminal history in hiring decisions.

Watch this episode on the Weintraub YouTube channel.



Show Notes:

Ryan: Hello, everyone, and thank you for joining us for this installment of California Employment News, an informative video and podcast resource offered by the Labor and Employment Group here at Weintraub Tobin. My name is Ryan Abernethy, and I'm a shareholder here at Weintraub Tobin. I'm joined here today with Nikki Mahmoudi, who is one of our great associate attorneys in the firm's Labor and Employment Group.

We are here today to discuss a general overview of California's Fair Chance Act or the Ban the Box law, which restricts employers' use of criminal background checks for hiring decisions here in California. There are many features to this Ban the Box law, so this installment of the California Employment News will be a general overview and not an exhaustive review of all of its nuances. So, nick, you want to kick us off, and if you could briefly describe California's Ban the Box law, and specifically got its name.

Nikki: Of course. As Ryan mentioned, here in California, the Fair Chance Act, otherwise known as the Banned the Box law, provides guidelines to employers on how to properly consider criminal history and employment decisions. Why is it called Ban the box. It's because the law aims to remove the check box that was commonly included on job applications, which ask applicants to disclose whether they had a criminal record. The law requires employers with five or more employees, with a few exceptions, to to follow certain procedures when requesting and using criminal history information for pre-hired purposes. Specifically, regardless of the source of the criminal history information, employers must do the five following steps. The first, Two, is wait until a conditional job offer is made before asking applicants questions about criminal history or using criminal history information to inform their hiring decisions. Two, if the employer discovers the applicant has a conviction history, the employer must conduct an individualized assessment of the applicant's conviction to determine whether it has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position. There are certain factors the ban the box law requires employers to consider in their individual assessments that we'll discuss later.

Three, the employer must notify the applicant of any potential adverse action based on the conviction history. The notice must identify the conviction, include a copy of any conviction history report, regardless of the source, and state the deadline for the applicant to provide additional information such as evidence of inaccuracy, rehabilitation, or other mitigating circumstances. Four, the employer must give the individual at least five business days from the individual's receipt of the pre-adverse action to respond to the employer's preliminary notice. Now, if within Five business days, the applicant notifies the employer in writing that the applicant disputes the conviction history's report's accuracy and is taking steps to obtain evidence, then the employer must give the applicant an additional five days to respond. Five, the employer must consider all the evidence submitted by the individual and notify the applicant of any final adverse action, any existing procedure the applicant has to take to challenge the decision or request consideration, and the applicant's right to file a complaint with the California Civil Rights Department. Ryan, can you tell us a bit about what type of positions are not restricted by the ban the box law,