Recently, new legislation regulating the use of criminal history in employers’ hiring decisions has become effective in California. Such legislation is known as “ban-the-box” laws because they do away with a catch-all approach to disqualifying job applicants who have to check the box under “yes” for the common job application question “do you have a criminal conviction?”
Before the Legislation
Previous to the new law, California employers were already limited as to inquiries they were allowed to make regarding sealed, expunged, or eradicated criminal convictions—or criminal activity that never resulted in a conviction. Now, employers are not allowed to probe into past convictions if the inquiry does one or both of two things:
- adversely impacts individuals on a basis protected under the non-discrimination law
- cannot be proven as job-related or necessary to the business
Though the burden of responsibility for proving an “adverse impact” is with the applicant, the employee has the responsibility of proving that the criminal conviction(s) in question, and the resulting disqualification, is related to job the applicant has applied for with consideration of:
- the nature and gravity of the offense
- the amount of time that has passed since the offense
- the nature of the job and the relevancy of the offense
What’s Your Take on Ban-the-Box?
Ban-the-box legislation is being adopted across the nation, so it’s important to understand how your business might be affected by your region’s imminent or relative adoption of similar policies. Contact us with any questions about how to adhere to the FCRA and local laws while adding to your employee base.
