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Asking employment applicants about criminal history

Before hiring, many employers run a background check to see if an applicant has a criminal history. California employers should be aware of California’s so-called “ban the box” law that regulates when and how employers can run background checks.

California’s ‘Ban the Box’ law

In 2018, California’s “Ban the Box” law took effect. With limited exceptions, the law prohibits most entities employing five or more people from inquiring about an applicant’s criminal history until after there is a conditional offer of employment.

The law also prohibits employers from asking about or considering criminal history that did not result in a conviction. This include asking about expunged convictions or arrests that did not end in conviction.

Individualized consideration

Once an applicant has received a conditional offer of employment, an employer can ask about criminal history or run a criminal background check going back seven years.

If the applicant has a criminal record, the law requires the employer to individually assess the conviction, rather than simply rescinding a job offer because of a criminal conviction. The employer must also give the applicant an opportunity to provide information regarding their criminal convictions or rehabilitation.

Complying with the law

Failure to comply with the law can result in penalties imposed by the California Department of Fair Employment and Housing. To avoid non-compliance, employers may consider establishing clear policies outlining the hiring process and the use of criminal history information. A knowledgeable attorney can assist in helping employers establish procedures to ensure compliance.