California Bans the Box and Limits Compensation Inquiry
Posted: December 07, 2017
Several new laws and regulations will become effective in California on January 1, 2018. Two laws, in particular, are noteworthy given their impact on employer hiring practices. The following information is provided for general educational purposes only and should not be considered legal advice. Consultation with qualified legal counsel is recommended in all matters of employment law. Ban the Box. ”Ban the Box” laws exist in over 29 States and 150 municipalities. And, as many readers know, the requirements and limitations of these laws vary by location. California will soon join the fray with its version of ”Ban the Box,” effective January 1, 2018. A.B. 1008, California’s version of ”Ban the Box”, was signed on October 14, 2017 by Governor Jerry Brown. The law:
- Applies to all public and private employers with five or more employees.
- Prohibits inquiry into a candidate’s criminal history or conducting/procuring a criminal background check until after a conditional offer of employment has been made.
- Requires an employer, if considering an adverse employment decision based on criminal history, to:
- Conduct an individualized assessment regarding the relationship between the criminal history and job duties by considering: 1) the nature and gravity of the offense, 2) the time that has elapsed since the offense and completion of sentence, and 3) the nature of the job sought.
- Provide written notification to the candidate and include: 1) notice of the potentially disqualifying conviction/s, 2) a copy of the conviction history, 3) an explanation of the candidate’s right to respond before a final decision is made, 4) an explanation that the response may include evidence challenging the accuracy of the criminal information, and 5) the deadline for responding, which must be at least five business days after the notice. (If the candidate informs the employer s/he is obtaining evidence to support his/her position, the candidate must have an additional five days to respond.)
- Requires the employer, if making a final decision not to employ, to:
- Inform the candidate in writing of the final denial or disqualification.
- Explain the existing procedure, if any, the employer has for the candidate to challenge the decision or request reconsideration.
- Inform the candidate of his/her right to file a complaint with the California Department of Fair Employment and Housing (DFEH).
- Applies to all public and private employers.
- Prohibits employers from asking candidates for employment about their pay history.
- Allows employers to consider salary information if provided voluntarily by the candidate and without prompting.
- Requires employers provide the pay scale for the position if requested by the candidate
- Remove questions about criminal and compensation history from employment applications and other candidate data collection tools.
- Document the process to be used when considering an adverse employment decision or finalizing an adverse employment decision based on a candidate’s criminal history. Ensure the process complies with the requirements of California State and municipal ban the box laws.
- Educate team members on changes in law(s) and new processes.
- Keep in mind that compliance with the Federal FCRA, State FCRA Analogues, and other applicable laws is still required.