New minefields for California employers re applicants’ criminal backgrounds

California’s version of “Ban the Box” went live yesterday, and San Francisco’s much broader version debuts next month. Are your recruiters and interviewers ready?

If you don’t know already, “Ban the Box” is a s campaign to encourage (or require) employers not to ask applicants about criminal records in employment applications or screening interviews. Some 10 US states and more than 50 US cities have already enacted legislation requiring public employers — and in some cases private contractors working for public employers — to keep such questions until much later in the process, thereby giving folks a fair chance to establish their qualifications and get a job despite prior criminal records. A few private companies, most publicly Target,  have voluntarily stopped asking about these kinds of things.

The California law, AB 218, applies to public employers in California from the state on down. A public employer may not ask about convictions or related information until after the employer concludes the applicant is qualified for the job (per the job posting). There are exceptions for, among other things, jobs in criminal justice or jobs that legally require a conviction history background check on the applicant. AB 218 became effective on July 1, 2014.

Don’t tune out, private employers. San Francisco recently passed an ordinance applicable to private employers. The San Francisco “Fair Chance” Ordinance prohibits SF employers from asking applicants about criminal convictions on employment applications or during an initial interview. Employers must provide a written notice before asking about criminal backgrounds, and must post a notice in the workplace. In addition, employers may not ask at all about:

• arrests that didn’t result in conviction;
• completion of diversion programs, i.e. for drug or alcohol related offenses;
• juvenile offenses or criminal matters that have been sealed;
• older offenses (> 7 years old); or
• lesser offenses such as infractions.

But wait, there’s more! employers can only use criminal information they do get if it has “a direct and specific negative bearing on that person’s ability to perform the duties or responsibilities necessarily related to the employment position.” And there’s a complicated notification process and an opportunity for the applicant to plead his or her case if the employer rejects an applicant based upon criminal history. Employers in San Francisco need to act pronto to meet the law’s August 13, 2014 effective date. You lucky folks should be doing at least the following:

• Review employment applications for compliance;
• Review hiring procedures for compliance;
• Get notification forms and posters out and at the ready; and
• Train interviewers on the new requirements.

And if you’re not in the public sector or in San Francisco? Ignore these new laws at your own risk. The present trend is in favor of limiting an employer’s right to learn or use criminal histories in the hiring process, and doesn’t show any signs of going away any time soon.

Contact your employment counsel for more information on these issues.