On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
BAN THE BOX: ARE EMPLOYERS BEING BOXED IN?
Lawsuit Prevention for Employers
Virtually Every Pre-2018 Employment Application is Now Illegal
Effective January 1, 2018, California employers are prohibited from making any inquiries about an applicant’s criminal record or conviction history before making a conditional offer of employment. In addition, the new legislation imposes significant disclosure requirements whenever employers seek information related to an applicant’s criminal history.
The new law, Government Code, section 12952, prohibits most employers with five or more employees from including any question on an employment application which seeks the disclosure of an applicant’s conviction history, or from considering the conviction history of an applicant, until after a conditional offer of employment is made.
What is Required?
Accordingly, before employers deny a position to an applicant based on the applicant’s conviction history, they must conduct an “individualized assessment” of the applicant’s specific situation, taking into consideration whether the conviction history has a direct and adverse relationship on the applicant’s ability to perform the specific duties attendant to the vacant position. As part of this process, employers must consider:
- The nature and gravity of the offense;
- The time that has elapsed since the offense and completion of any sentence; and
- The nature of the job held or sought.
While employers are not required to commit the results of the individualized assessment to writing, it is recommended, provided it will reflect that the assessment was properly conducted.
If, after conducting the “assessment,” the employer makes a preliminary decision to withdraw the applicant from consideration, the employer must provide written notice of the preliminary decision to the applicant. The notice must specify 1) the disqualifying conviction resulting in the preliminary rescission of the employment offer; 2) provide a copy of the conviction history report upon which the rescission was based, if any, and, 3) include an explanation of the applicant’s right to respond to the employer’s preliminary decision before it becomes final, and the deadline for doing so. The notice must also 4) inform the applicant of his/her right to challenge the accuracy of the conviction history resulting in the rescission, or to submit evidence of rehabilitation or mitigating circumstances that could affect the employer’s final decision.
The applicant must be provided at least five business days to respond before the final employment decision is made. If the applicant, within five business days, informs the employer in writing that he/she disputes the accuracy of the conviction history report and is pursuing evidence supporting its challenge, the applicant must be provided five additional business days to respond to the notice.
Once the applicant’s response is received, the employer is required to consider it before making a final decision. If the employer proceeds with a final decision to deny employment, based in whole or in part on a prior conviction history, the employer must notify the employee in writing of:
- The final denial or disqualification;
- Any existing internal procedure enabling the applicant to challenge the final decision; and
- The right to file a complaint with the Department of Fair Employment and Housing (“DFEH”).
What It Means
The new law essentially guarantees that, unless employers significantly modify their hiring procedures starting with completely new employment applications, they will be in violation of the law.
The above discussion summarizes the new “hoops” employers must successfully navigate before they can legally solicit or consider information related to prior convictions as part of the hiring process.
In short, if such information is requested and/or considered, without satisfying each of the above requirements, employers can expect a lawsuit alleging that the applicant was denied employment as a result of the employer’s unlawful inquiry.
Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over three decades. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives.
While no one can guarantee a future free of lawsuits, Putnam has compiled a remarkable record of success: Not one employer-client has been sued in 36 years with his system of precautions in place.
For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.
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