Posted on February 12th, 2019
Did you know that California has a new law on criminal history enquiry ?
Read on to learn what it is.
As of November 2018, California’s unemployment rate was 4.1 percent for the general public.
But the unemployment rate for former criminal offenders in California is 27 percent.
That is higher even than the unemployment rate during the Great Depression.
This year, however, California Governor Jerry Brown has amended Section 432.7 of the Labor Code with regulations that they say will lower that rate.
Those regulations include changes to criminal history i
Discover what you need to know about the new criminal history inquiry laws.
The Ban the Box Law Explained
In standard employment applications, a box on the application asks applicants to check a “Yes” or “No” if they have a criminal history.
The Ban the Box Law was a law signed by Governor Jerry Brown that amends California Labor Code Section 432.7.
This law eliminates this box from employment applications as of January 1, 2019.
It’s colloquially known as the Ban the Box Law, and it also limits what a business can ask an applicant when it comes to their criminal history.
The law takes effect on January 1, 2019, and makes it illegal for a business to inquire about criminal histories on applications.
It does not mean that businesses can not ever make criminal background checks.
But it stipulates that criminal history checks must occur later in the hiring process.
The purpose of the Ban the Box Law is to protect former offenders from being unable to gain employment after sentencing.
Businesses today must be aware of the ins and outs of the Ban the Box Law.
Knowing this will help you to avoid lawsuits from applicants that may feel they are being discriminated against for having a criminal history.
The law also stipulates that questions related to criminal histories are not allowed in job interviews as well.
But, at the same time, businesses today still can protect themselves from having offenders on the payroll.
There is a legal process your business can undergo.
You should have the right to protect yourself, your employees and customers from having possible dangerous offenders in the workplace.
What Criminal History Enquiry Checks Can Employers Make?
The Ban the Box Law stipulates that businesses with employees of five or more must undergo a procedure to determine if an applicant has a criminal history.
This cannot take place until a conditional offer of employment has occurred.
In other words, you can not ask questions about criminal history on the application.
You also can not ask these questions during the interview process.
After the conditional employment offer, you have the right to conduct a criminal background check, and this check must be in compliance with the Fair Credit Reporting Act.
This Act stipulates that employers must get written consent from the applicant to conduct the background check.
Once the background check is complete, you will decide whether or not
If a conviction record is more than seven years old, it can not be a reason to deny employment.
If a record is used as a reason to deny employment, you must supply a copy of the record to the applicant.
A criminal record alone may not be enough cause for a business to deny employment. You as a business owner must consider certain conditions before denying employment.
Those are, what the offense is and how serious it is, the date of the offense and how long it has been, and the nature of the job.
Does the offense preclude employment for the applicant?
For example, if the applicant is applying for a cash register position, an offense of theft could be cause for denying employment.
But if the individual committed a drug-related offense and underwent rehab, it may not be legal to deny them employment for a customer service position.
When An Applicant is Denied
Under the Ban the Box Law, there is now a certain procedure that you must undergo if you decide not to hire an applicant based on criminal history.
You will need to provide the applicant with a written notice of this denial, and also the reason.
The nature of the conviction must be reported, and you need to provide the applicant with a copy of the record that led to your decision.
At this point, the decision process is still not over. The applicant has the right to respond.
They must provide evidence or mitigating circumstances regarding the conviction within five business days of your notification.
You are not legally able to make a final decision on the applicant until you have received a response from the applicant.
Once you receive this, you then have the right to deny employment and must provide the applicant with written notice.
When you provide that written denial, you must also specify to the applicant what they can do to challenge your decision.
You must also notify them of their rights to file complaints with the California Department of Fair Employment and Housing.
The Anti-Discrimination Clauses
In addition to the hiring procedures outlined in the Ban the Box Law, you’ll need to know the anti-discrimination clauses included in the law.
You want to prevent lawsuits from offenders with a criminal history. But you also want to prevent discrimination complaints.
Both federal and California laws prevent you from discriminating against potential employees.
An important part of the hiring process is ensuring you know how to prevent discrimination lawsuits.
Utilizing labor lawyers through your hiring process can be very helpful for many reasons.
They can ensure you are not falsely accused of discrimination in your California business.
Take Control of Your Hiring Practices
California is the tenth state to adopt ban the box laws.
These new regulations could expose you to lawsuits if you don’t take the necessary precautions.
You can regulate this and take control of your own hiring practices.
Ensure you have an airtight hiring package in place before the criminal history enquiry even begins.
You are in charge of your business.
Contact an expert today to create your bulletproof policies and procedures package and prevent a devastating lawsuit that could occur after your hiring process.