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    California “Ban the Box” – What Job Applicants Need to Know

    California has a “ban the box” law that prohibits employers with five or more employees from inquiring into your criminal history before making a conditional offer of employment. Even after making an offer of employment, an employer cannot deny you because of a conviction without making an individualized assessment.

    California law still prohibits employers from asking about, or considering, criminal convictions that have been expunged. AB 1008 takes the law a step further. It bars employers from considering any criminal conviction, expunged or not, prior to making a conditional job offer. This state law applies to both

    Note that with the implementation of Senate Bill 731 & Assembly Bill 1076 – The Clean Slate Act, California is automatically clearing most people’s criminal records after a specified time period through a process called “automatic relief“:

    • Misdemeanor arrests should be sealed after 1 year if there are no criminal charges, and felony arrests should be sealed after 3 years if there are no criminal charges.
    • Cases that get dismissed will be cleared immediately.
    • Convictions of cases where you are granted probation should be cleared when the case closes.
    • Otherwise, misdemeanors convictions get cleared 1 year after the case ends, while felony convictions get cleared 4 years after the case ends. (This does not apply to serious, violent, or sex offender felonies.)

    Once sealed, these arrests/charges/convictions should no longer show up on your background check. Though if you pick up new cases in the interim, it will delay the automatic sealing process.

    Below, our California labor and employment law attorneys discuss the following frequently asked questions (faq) about criminal history and job applications:

    If you have further questions after reading this article, we invite you to contact us at Shouse Law Group.

    1. Does California have a “Ban the Box” law?

    Yes. A “Ban the Box” law is a statewide law that is aimed at removing barriers to employment if you have been convicted of a crime. “Banning the Box” laws prohibit California employers from asking about your criminal record during the initial application process.

    “Ban the Box” laws are intended to give you the opportunity to have an employer evaluate you

    • based on your qualifications and not
    • simply eliminated because you have a criminal record.

    On October 14, 2017, California Governor Jerry Brown signed Assembly Bill 1008 – instituting California’s Ban the Box law. Also called the California Fair Chance Act, the “Ban the Box” law, became effective January 1, 2018.1

    With the passage of the bill, California joins a number of other states that have enacted similar laws. A number of major cities, including Los Angeles and San Francisco, already have similar laws and some private employers have “ban the box” policies.2

    California’s “Ban the Box” law applies to private employers in the state with 5 or more employees.3 The law will prohibit employers and business owners from asking about your criminal conviction history prior to making a conditional offer of employment.4

    2. What criminal convictions can an employer ask about?

    There are a number of exceptions to the new “ban the box” law. The law does not apply to the following positions:

    • A position for which a state or local agency is required by law to conduct a conviction history background check;
    • A position with a criminal justice agency or with law enforcement;
    • A position as a Farm Labor Contractor; or
    • A position where an employer or agent is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history.5

    In addition, employers can ask about a criminal conviction after the employer has extended a conditional offer of employment.6

    An employer is also prohibited from considering other criminal history that did not end in a conviction when making hiring decisions. This includes:

    • Arrest not ending in conviction (unless the case is still open);
    • Juvenile records;
    • Referral to or participation in a pre-trial or post-trial diversion program; or
    • Convictions that have been sealed, expunged, or dismissed.7
    A box with a red X

    “Ban the Box” forbids California employers from asking about your criminal history during the initial application process.

    3. Can the employer ask about criminal history during an interview?

    Employers cannot ask about a criminal conviction during an interview, or at any time before making a conditional offer of employment.8 This includes during

    • an initial interview,
    • the second interview, or
    • the final round of interviews if an offer of employment has not been extended.

    For more discussion, see our page on how to explain a misdemeanor on a job application.

    4. When can an employer ask about criminal convictions?

    Employers can ask about criminal convictions after making a conditional offer of employment. A conditional offer of employment is a job offer that is dependent on you meeting certain conditions. Those conditions could include

    • a background check and
    • a check of your criminal convictions.9

    After making a conditional job offer, an employer can ask about criminal convictions. However, the employer cannot automatically exclude you just for having a criminal conviction. Instead, an employer that intends to reject you solely or in part because of your criminal history is required to perform an individualized assessment of you.10

    An individualized assessment requires the employer to consider a number of factors to decide whether or not to hire you. These factors include:

    • Whether your conviction history has a direct and adverse relationship with the specific job duties;
    • The nature and gravity of the offense or conduct;
    • The time that has passed since the offense or conduct and completion of the sentence; and
    • The nature of the job held or sought.11

    The individualized assessment may be put in writing, but this is not required.12

    5. What is the California 7-year rule?

    The criminal background checks that California employers order following a conditional offer of employment go back for only seven years (with some exceptions). This means that convictions older than seven years will not show up, and therefore employers cannot disqualify you based on them.13

    6. What happens if the employer finds out about a conviction after I am offered a job?

    After making a job offer, the employer can make the job conditional on meeting certain terms or conditions. This includes passing a background check. If the employer finds out about your criminal history, the employer can take that into consideration whether to accept you or deny you.

    If an employer makes a preliminary decision to deny you solely or in part because of your criminal history, the employer is required to perform an individualized assessment of you, as noted above. If the employer denies you based on your conviction history, the employer must notify you in writing.

    The employer’s written notification may, but is not required to, explain the employer’s reasons or basis for making the preliminary decision to disqualify you. However, the notification is required to contain the following:

    1. Notice of the disqualifying conviction or convictions that are the basis for the preliminary employment decision to rescind the offer;
    2. A copy of the conviction history report, if any; and
    3. An explanation of your right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond.

    The explanation of your rights must inform you that you can submit

    1. evidence that challenges the information in the conviction history report,
    2. evidence of rehabilitation, or
    3. evidence of mitigating circumstances.14
    Person filling out a job application - California's 'Ban the Box' law limits an employer's right to inquire about criminal history

    In California, you may respond to an employer’s preliminary decision to pass you over due to your criminal history.

    7. Can I respond to the employer after they send a notice that I am disqualified?

    You have the opportunity to respond to an employer’s preliminary decision to disqualify you based on criminal history. An employer’s notification of the decision to deny you must also explain your right to respond to the notice before the denial decision becomes final.15

    You shall have at least five (5) business days to respond to the notice or a preliminary decision to deny you before the employer may make a final decision.16

    If you notify the employer within 5 days in writing that there are inaccuracies in the conviction history report, and you are going to obtain evidence in support of your position, you shall have five additional business days to respond to the notice.17

    Before the employer can make a final decision, the employer shall consider

    1. your response and
    2. any evidence submitted by you.18

    You may also want to include letters of reference and emphasize your training, education, experience, and even volunteering experience (if applicable).

    If the employer makes a final decision to deny you based on your criminal conviction history, the employer has to notify you in writing. The employer may, but is not required to explain the basis for the final denial. The notice must contain the following:

    1. The final denial or disqualification;
    2. Any existing procedure the employer has for you to challenge the decision or request reconsideration; and
    3. The right to file a complaint with the California Civil Rights Department (CRD), formerly the Department of Fair Employment and Housing (DFEH).19

    8. What recourse is there if an employer violates ban the box rules?

    If an employer asks about your criminal history in violation of the new “Ban the Box” law, you may be able to file a complaint or lawsuit against the employer.20

    If you file a lawsuit against employment discrimination based on a criminal conviction, you may be able to seek money damages or equitable relief. If you suffered employment discrimination or harassment based on a criminal conviction, you can also seek to

    • recover the costs associated with bringing the lawsuit, and
    • have the employer reimburse your expenses for attorney’s fees and court costs.21

    There are three ways to file a complaint with CRD:

    1. File online;
    2. Fill out the complaint and mail it to CRD, 2218 Kausen Drive, Suite 100, Elk Grove, CA 95758; or
    3. Call the CDR at (800) 884-1684.

    In 2021, the CRD searched online job advertisements and discovered about 500 listings with unlawful statements such as “must have clean record.” The CRD then mailed notices to these employers with instructions to remove these illegal statements. Note that the CRD is also offering Fair Chance Act Toolkits to employers to help them comply with the “ban the box” law.

    9. How many states have ban the box laws?

    Other than California, the following states mandate “ban the box” for both public and private employers: Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington. And more than thirty states have “ban the box” laws for public sector employers.22

    10. Does ban the box work?

    There is evidence that ban the box actually works against low-skilled minority males. Some employers presume this population has a criminal record, so they disqualify low-skilled minority males from the start.23

    11. Are background checks legal in California?

    Yes, but with conditions. California employers may run a third-party background check on you if:

    • they make a conditional offer of employment, and
    • you provide written consent.24

    Additional resources

    For more information, refer to the following:

    Legal References:

    1. California AB 1008 amends Fair Employment and Housing Act (FEHA) to add Government Code section 12952, effective date January 1, 2018 (“The Fair Chance Act”). See, for example, People v. Allen (Court of Appeal of California, Fourth Appellate District, Division One, 2019) 254 Cal. Rptr. 3d 134 , 147; Juster v. Workday, Inc. (United States District Court for the Northern District of California, 2022) 21-cv-07555-EMC.
    2. California AB 1008 (“(d) Nine states and 15 major cities, including Los Angeles and San Francisco, have adopted fair chance hiring laws that cover both public and private sector employers. Over 20 percent of the United States population now lives in a state or locality that prohibits private employers from inquiring into an applicant’s record at the start of the hiring process.”). Hawaii was the first state to institute a “ban the box” law. See also Fair Chance Initiative for Hiring Ordinance (FCIHO) in Los Angeles; Fair Chance Ordinance (FCO) in San Francisco.
    3. Fair Employment and Housing Act 12952 (“(a) Except as provided in subdivision (d), it is an unlawful employment practice for an employer with five or more employees to do any of the following: (1) To include on any application for employment, before the employer makes a conditional offer of employment to the applicant, any question that seeks the disclosure of an applicant’s conviction history. (2) To inquire into or consider the conviction history of the applicant, including any inquiry about conviction history on any employment application, until after the employer has made a conditional offer of employment to the applicant.”)
    4. Same.
    5. Fair Employment and Housing Act 12952 (“(d) This section does not apply in any of the following circumstances: (1) To a position for which a state or local agency is otherwise required by law to conduct a conviction history background check. (2) To a position with a criminal justice agency, as defined in Section 13101 of the Penal Code. (3) To a position as a Farm Labor Contractor, as described in Section 1685 of the Labor Code. (4) To a position where an employer or agent thereof is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history. For purposes of this paragraph, federal law shall include rules or regulations promulgated by a self-regulatory organization as defined in Section 3(a)(26) of the Securities Exchange Act of 1934, as amended by 124 Stat. 1652 (Public Law 111-203), pursuant to the authority in Section 19(b) of the Securities Exchange Act of 1934, as amended by 124 Stat. 1652 (Public Law 111-203).”)
    6. Fair Employment and Housing Act 12952, footnote 3 above.
    7. Fair Employment and Housing Act 12952 (“(3) To consider, distribute, or disseminate information about any of the following while conducting a conviction history background check in connection with any application for employment: (A) Arrest not followed by conviction, except in the circumstances as permitted in paragraph (1) of subdivision (a) and subdivision (f) of Section 432.7 of the Labor Code. (B) Referral to or participation in a pretrial or posttrial diversion program. (C) Convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.”)
    8. Same. Note that having a criminal history can bar someone from receiving a professional license, such as in In re Gossage, (2000) 23 Cal. 4th 1080, 5 P.3d 186, 99 Cal. Rptr. 2d 130; see also In re Strick (1983) 34 Cal. 3d 891, 196 Cal. Rptr. 509, 671 P.2d 1251.
    9. Fair Employment and Housing Act 12952 (“(b) This section shall not be construed to prevent an employer from conducting a conviction history background check not in conflict with the provisions of subdivision (a).”)
    10. Fair Employment and Housing Act 12952 (“(c)(1)(A) An employer that intends to deny an applicant a position of employment solely or in part because of the applicant’s conviction history shall make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position. In making the assessment described in this paragraph, the employer shall consider all of the following: (i) The nature and gravity of the offense or conduct. (ii) The time that has passed since the offense or conduct and completion of the sentence. (iii) The nature of the job held or sought.”)
    11. Same.
    12. Fair Employment and Housing Act 12952 (“(c)(1)(B) An employer may, but is not required to, commit the results of this individualized assessment to writing.”)
    13. California Civil Code 1786.18.  See also FCRA (Fair Credit Reporting Act).
    14. Fair Employment and Housing Act 12952 (“(c)(2) If the employer makes a preliminary decision that the applicant’s conviction history disqualifies the applicant from employment, the employer shall notify the applicant of this preliminary decision in writing. That notification may, but is not required to, justify or explain the employer’s reasoning for making the preliminary decision. The notification shall contain all of the following: (A) Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer. (B) A copy of the conviction history report, if any. (C) An explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond. The explanation shall inform the applicant that the response may include submission of evidence challenging the accuracy of the conviction history report that is the basis for rescinding the offer, evidence of rehabilitation or mitigating circumstances, or both.”).
    15. Fair Employment and Housing Act 12952 (“(c)(3) The applicant shall have at least five business days to respond to the notice provided to the applicant under paragraph (2) before the employer may make a final decision. If, within the five business days, the applicant notifies the employer in writing that the applicant disputes the accuracy of the conviction history report that was the basis for the preliminary decision to rescind the offer and that the applicant is taking specific steps to obtain evidence supporting that assertion, then the applicant shall have five additional business days to respond to the notice.”)
    16. Same.
    17. Same.
    18. Fair Employment and Housing Act 12952 (“(c)(4) The employer shall consider information submitted by the applicant pursuant to paragraph (3) before making a final decision.”)
    19. Fair Employment and Housing Act 12952 (“(c)(5) If an employer makes a final decision to deny an application solely or in part because of the applicant’s conviction history, the employer shall notify the applicant in writing of all the following: (A) The final denial or disqualification. The employer may, but is not required to, justify or explain the employer’s reasoning for making the final denial or disqualification. (B) Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration. (C) The right to file a complaint with the department.”)
    20. Fair Employment and Housing Act 12952 (“(e) The remedies under this section shall be in addition to and not in derogation of all other rights and remedies that an applicant may have under any other law, including any local ordinance.”)
    21. Fair Employment and Housing Act 12965 — Unlawful Practices. (“(b) … In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees.”)
    22. See National Employment Law Project.
    23. Patricia Barnes, Study Says “Ban The Box” Policies Hurt (Not Help) Young Minority Male Job Seekers, Forbes (March 1, 2020).
    24. See note 3. See also FCRA (Fair Credit Reporting Act).

     

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