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California Passes “Ban the Box” Law

Written by Michelle Silverstein

This week, California Governor Jerry Brown passed a statewide law colloquially named “Ban the Box,” which prohibits private employers in California from asking about or considering a job applicant’s conviction history before a conditional offer of employment. The law will take effect on January 1, 2018.

The law’s intent is to provide applicants with a criminal record the chance to gain employment based on their qualifications and abilities, not based on past convictions. Data estimates that about 65 million American adults have criminal records, or about ¼ of the adult population. By making it easier for people with conviction records to get jobs, the law is designed to help reduce recidivism and improve the overall economy. The EEOC has increasingly focused on the effects that background checks have on employment opportunity, and this law suggests that California, along with nine other states, is on the forefront of a trend that will extend to other areas of hiring as well.

What does this mean for employers in California? While we aren’t giving legal advice, here are some of the things you should know: The law will apply to private employers with five or more employees, and only a small number of positions are exempt from the law, including, for instance, positions for which the law requires employers to check criminal records. For most private employers in California, the law will prohibit you from asking about conviction history on a job application or at any other point before a conditional offer of employment. Employers will still be able to issue background checks or ask about conviction history after a conditional offer of employment has been extended.

If an employer does decide to not hire someone because of a previous conviction, they must be able to show that the conviction history has a “direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.” In making this decision, the employer must take into account the nature of the offense, the time that has passed since the offense occurred, and the nature of the job for which the person is applying.

Many employers who do use background checks use them with the ultimate aim of preventing counterproductive workplace behaviors, such as tardiness, theft, absenteeism, fraud, and more. One way to predict the likelihood that an applicant will engage in these types of behaviors is through integrity tests, which use personality traits to evaluate a candidate’s rule adherence, integrity/honesty, and attitudes towards theft. These tests serve as valuable tools in the hiring process because they have no adverse impact and are safe to use with respect to EEOC guidelines.

Learn more about the law and its effect on the hiring process here.

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