As discussed in a recent news article from the National Law Review, California’s newly passed Ban-the-Box regulation has now taken effect. This means that our state has joined a growing list of states that are what is being called the Ban-the-Box bandwagon.
When we use the term “box” we are talking about asking prospective employees if they have any criminal convictions. While on some applications there is actually a box to check if the applicant has a criminal history, the new law applies to any form of the question.
As our Orange County employment attorneys can explain, California already had a prohibition on asking prospective employees about any arrests or investigations that did not result in a conviction, but this new law applied to situations where there is an actual criminal conviction.
However, it should be noted that event this new law is not an absolute prohibition on asking about criminal convictions. The law prohibits employers from asking about prior convictions if that inquiry has an adverse impact on the prospective employee based upon a basis that is protected by California’s anti-discrimination statement. Additionally, the employer may not ask about prior conviction if the employer cannot demonstrate that the inquiry into a claimant’s criminal history is consistent with a legitimate business need among other conditions.
Essentially, the employee must demonstrate that there is an adverse impact should an issue arise. This means that the employee must show there has been an adverse effect on a class of people by making such an inquiry, and that class of persons is protected under the law. If this condition is met, the burden shifts to the employer to try to rebut that presumption. This is accomplished by the employer showing that there is a not an adverse effect, or there is a business necessity to ask an employee about past convictions.
While this may sound like a confusing process, and in many ways it is, it doesn’t need to involve litigation. The hope is that there will be pressure on employers to review their policies and make changes to the application process to prevent any issues from arising. One of the main things employers are being asked to do is to remove the check box if one actually exists on the application form.
The reality is that there are certain areas where an employer will be able to ask about past convictions. These are cases where the job involves handling money, managing money, access to customer or patient’s social security numbers, care of children or individuals with disabilities, and any job with state or federal regulations that require a background check. It should also be noted that there are some jobs that require a certificate or license. If that license requires a background check and a clean record, the new ban-the-box law should not prohibit such a process.
On the other hand, if you apply for a job as a cook at a restaurant, that restaurant would be hard pressed to explain why it is necessary to ask about the prospective employees past criminal convictions.
Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 714-937-2020.
California Joins the Ban-the-Box Bandwagon, July 5, 2017, By Jennifer B. Rubin, National Law Review
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