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Statewide 'Ban the box' legislation goes into effect January 1

Do your company's job applications ask applicants to check a box if they have previous criminal convictions? You may want to double-check before January 1, when California's new "ban the box" law goes into effect statewide.

Under the new law, most California employers will be prohibited from asking job applicants about past criminal convictions. Many California cities, including Los Angeles and San Francisco, already have similar restrictions, and a 2013 law prevents most public employers in the state from asking about criminal history in the hiring process.

The statewide "ban the box" law builds on existing California law that prohibits both private and public sector employers from asking applicants about past arrests that did not lead to a conviction. Businesses that employ fewer than five people are exempt from the new law.

What about background checks?

The new law does not prevent employers from conducting background checks, or otherwise inquiring about criminal convictions, after making a conditional offer of employment. However, if an employer has second thoughts about a prospective employee after learning of a criminal conviction during the background check, they'll need to consider several things before they can rescind a job offer:

  • The type and severity of offense
  • How long ago the conviction occurred
  • Whether the conviction history will negatively affect the person's ability to perform specific job duties

If, after assessing these things, an employer decides the applicant is no longer qualified, they'll need to notify the applicant in writing of which conviction or convictions disqualified them from the job. The applicant must then have a chance to respond if the reported history is inaccurate, they have undergone rehabilitation or there are mitigating circumstances the employer should know about.

Criminal history is just one of many things that employers are prevented from asking job applicants about, as we've discussed in recent blog posts. If you're unsure whether your hiring practices comply with rapidly changing state laws, an employment attorney can offer guidance.

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