Innovating “Applicant”: Updates to California’s Ban the Box Law

The state of California is a leader in the tech world. Silicon Valley is the global hub for technology innovation and startups. Many of the largest tech-based corporations even call this state home. But when it comes to ban the box laws, California was less advanced. The California Fair Chance Act has only been around for a couple of years – 20 years after the first law of its kind in Hawaii.

How the State Joined the Movement

Beginning in 2018, California-based companies with five or more employees faced new restrictions. The state placed limits on how employers can use conviction history when evaluating applicants for employment during the hiring process.

The California Fair Chance Act says that employers cannot, among other things:

• Ask applicants about criminal records on an employment application.
• Ask or consider criminal history of any applicant until after making a conditional employment offer.
• Consider an applicant’s sealed, dismissed, or expunged records.
• Consider an applicant’s arrests without convictions or referrals to pre- or post-trial diversion programs.

Employers must evaluate an applicant’s records one by one if they look at criminal history during the hiring process. The assessment should consider the:

• Nature and gravity of the offense
• Time that has passed
• Nature of the job

Reshaping Definitions

The Fair Chance Act specifically protects job applicants.  California was concerned that there could be potential loopholes with the law. For example, an employer could have an applicant start work before a post-offer criminal history review. At that time, they could have an “employee” status (even conditionally) with the employer. Then the job applicant could potentially lose their “applicant” status and protections provided by the Fair Chance Act.

Now the California Fair Employment and Housing Council has issued new regulations to address the potential loopholes.  As of October 1, 2020, these Fair Chance Act regulations expand the definition of “applicant.” An “applicant” now includes anyone with a conditional offer of employment, but starts working while the employer performs a post-conditional offer review of criminal history.

The state hopes this will prevent employers from avoiding Fair Chance Act requirements.

The state’s Fair Employment and Housing Council wants to help employers understand the Fair Chance Act. Take a look at the Frequently Asked Questions for additional direction.

Do you still have more questions?  Your legal counsel can help you understand how the California Fair Chance Act applies to you.