New Law in California Expands “Ban the Box” Movement to all State and Local Agencies – Is Statewide Regulation of Private Employers Next?
For employers looking for qualified job applicants, the prospective employee’s past history is in many respects the best predictor of how they will perform. As employers, we want to know whether the applicant’s history evidences good work ethic, job dedication, and experience that is transferable to the position. In many industries, the applicant’s criminal history is also an important part of assessing an applicant’s fitness for a particular position. But a movement is sweeping the country that is changing the landscape for how public and private employers screen job applicants.
The movement is generally known as “Ban the Box”. It was conceived by an organization in San Francisco whose mission was to open doors for convicted felons seeking to reenter the job market after jail or prison. (See bantheboxcampaign.org.) The concept is simple – letting those with criminal convictions get their foot in the door and ultimately obtain gainful employment benefits society as a whole. It is no surprise that ex-convicts who are unable to find jobs after being released from prison are more likely to re-offend than those who obtain work. However, the realities facing employers in this litigious society should also be considered by local officials and legislatures who are considering making wholesale changes to the way employers screen job candidates.
On July 1, 2014, Labor Code section 432.9 will go into effect in California, prohibiting state and local agencies from asking a job applicant to disclose information concerning their conviction history until the agency has determined that the applicant meets the minimum employment qualifications. It does not prohibit all criminal conviction inquiry, but requires the agency to first determine if the applicant meets certain minimum qualifications set out in the job posting. Section 432.9 does exempt from the prohibition any position for which the state or local agency is otherwise required by law to conduct a conviction history background check, positions in a criminal justice agency, and individuals working on a temporary or permanent basis for a criminal justice agency on a contract basis or on loan from another governmental entity.
AB 218 was signed into law by Governor Jerry Brown late last year and follows several California cities and counties who have “banned the box” for applicants for public employment, including San Francisco, Richmond, Compton, and Berkeley. San Francisco recently extended this ban to private employers who are located in or do business in the City or County. The employer must employ 20 or more employees, but they do not all need to work in San Francisco for the ordinance to apply. (Fair Chance Ordinance, San Francisco Police Code Article 49, Sections 4901-4920.) Under the Fair Chance Ordinance, which goes into effect on August 1, 2014, the employer cannot ask an applicant about criminal history until after the first live interview. The employer must also provide notice to the applicant before making any conviction history inquiry. There are penalties for employer violations of the ordinance. The ordinance also applies to housing providers and consideration of applicants for housing.
While the “ban the box” movement has principally targeted public employers, San Francisco’s expansion of the law to private employers indicates a willingness by local governments to restrict employment related inquiries in the private sector. Other large cities (Seattle and Philadelphia for example) have enacted ordinances banning private employers from inquiring into an applicant’s criminal history until later in the hiring process. (See April 2014 Resource Guide by the National Employment Law Project on “Ban the Box”, available at www.nelp.org.)
The federal government is also alert to the issues surrounding employer inquiries into criminal conviction history. In 2012, the United States Equal Employment Opportunity Commission (EEOC) updated its Enforcement Guidance on Considerations of Arrest or Conviction Records in Employment Decisions. It states in the outset that “[a]n employer’s use of an individual’s criminal history in making employment decisions may in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended.” The EEOC has filed complaints against large corporations challenging hiring practices that rely on criminal background and credit history checks. In a recent court opinion, the United States District Court for the District of Maryland made an interesting observation, stating: “By bringing actions of this nature, the EEOC has placed many employers in the ‘Hobson’s choice’ of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized the information deemed fundamental by most employers.” (EEOC v. Freeman, 961 F.Supp.2d 783, 803 (2013).) The EEOC Guidance does recognize that there are federal laws that prohibit the employment of persons with records of specific crimes in certain positions; for example, child care workers in federal agencies, bank employees and port workers.
The EEOC asks employers as a best practice not to ask about convictions on job applications and that, if, and when they make such inquires, the inquires be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity. The EEOC’s stance on criminal conviction inquiries and the nationwide “ban the box” movement should cause employers to take a critical look at their hiring practices. It may only be a matter of time before the California Legislature expands the reach of Labor Code section 432.9 to private employers.