Let’s say that you are applying for a great job. You are more than qualified, the pay is above what you expected, and it’s close to your home. However, as you fill out the employment application, it finally pops up – “the box” – and your confidence sinks. It’s the box that asks if you’ve been convicted of a crime. If you have, and if you are honest and you check the box, you will probably remain unemployed.
Employers who print “the box” on their job applications often miss the chance to hire diligent, exceptionally qualified workers who may have had a bit of legal trouble in the past. Employers in San Francisco have not used “the box” since the city’s Board of Supervisors approved the “Fair Chance Ordinance” and banned “the box” in 2014, but outside of San Francisco, most private employers in California were still allowed to print the box on employment applications until July 1st of this year, when California’s new “Ban the Box” rule for most employers finally went into effect statewide.
WHAT DOES THE NEW RULE REQUIRE?
California already banned prospective employers from asking about previous detentions or arrests that did not result in criminal convictions, and employers have also been barred from asking about sealed or expunged criminal records.
The new rule applies to all employers in California with five or more California employees, and it bans employers from asking about criminal convictions if either of these situations exists:
The questions have an “adverse impact” on individuals protected by California anti-discrimination laws because they belong to a class that is legally protected on the basis of gender, race, religion, nationality, ethnicity, orientation, pregnancy, disability, or marital status.
The employer cannot prove that the questions are employment-related and pertinent to the needs of the business; or, if the employer can prove that the questions are employment-related, but the prospective employee or job applicant can offer a less discriminatory way to achieve the goals of the business just as effectively.
While the potential victims of hiring discrimination have the legal burden of proving that an employer’s questions create an adverse impact, an adverse impact can often be easily proven by statistics and other evidence that proves such questions lead to considerable disparities among persons in protected classes. In a legal dispute, an employer may attempt to counter the presumption of adverse impact by showing that a markedly different result can be expected because of the particularities of the job and the work in question.
WHERE CAN A VICTIM OF HIRING DISCRIMINATION TURN?
If you believe that a prospective California employer has asked you questions that California employers may not legally ask – whether or not you completed a job application with or without “the box” – and those questions created an “adverse impact” on you as a job-seeker, discuss your circumstances as quickly as possible with an experienced San Francisco employment rights attorney.
Employees and job-seekers in the state of California enjoy substantial legal rights. If those rights are violated by a California employer, you may be able to negotiate a settlement or agreement out of court with an attorney’s help, or you may be entitled to pursue a lawsuit, hold the employer accountable for illegal discrimination, and even – in some cases – receive monetary compensation. An experienced San Francisco employment rights attorney can explain your legal rights and options and how the law applies in your particular case.
In a legal setting, once a job-seeker shows that questions from an employer about criminal convictions will create an adverse impact, the employer must prove that having accurate information about the criminal convictions of employees is a necessity for the business. Thus, the employer must prove that the policy or practice accounts for the nature and gravity of a criminal conviction and for the time that has passed since the sentence was completed as well as the nature of the job itself.
WHEN DO EMPLOYERS NEED TO KNOW ABOUT CRIMINAL CONVICTIONS?
To be considered legal, an employer’s “need to know” or ask about criminal convictions must be clear and undeniable. It is exceedingly difficult for most California employers to prevail in these cases, but there are some exceptions. Obviously, a day care center cannot hire someone with a recent child abuse conviction, and a taxicab company cannot hire a driver with recent convictions for driving under the influence of alcohol or drugs.
Employers who hire for child care and assisted living facilities, transportation jobs, financial, accounting, and banking services, and security-related positions may have a legally defensible basis to reject employment applications from persons with related criminal convictions.
But in cases where the relationship of the criminal conviction to the job is less than explicit, employers will have difficulty proving their case – especially if the prospective employee belongs to a legally protected class. For most employment in California, convictions for crimes like DUI, simple assault, and drug crimes are not “automatic” disqualifiers.
With the implementation of “ban the box” statewide, some California employers should probably reconsider whether a hiring policy that “automatically” disqualifies some job-seekers is still in their best interests. Under California law, it may be a better approach for some employers to consider every job applicant individually and without any automatic disqualification policy for hiring.
Employers may also need to review and revise their written job classifications and descriptions to ensure that the current language fully complies with the new rules. If a check box on the employment application asks about criminal convictions, most employers should remove it, and if the employer believes that information about criminal convictions is a necessity, that information should be sought at a later stage in the hiring process.
Hiring discrimination cannot be tolerated, and the law in this state forbids it. Banning “the box” is just one more step toward ending hiring discrimination – in all of its forms – in our state. If you experience any hiring or employment discrimination in California based on your gender, religion, race, ethnic background, disability, pregnancy, or sexual orientation, speak as soon as you can with an experienced employment attorney to discuss your legal rights and options.
If you are a victim of employment discrimination in California, the law is on your side, and an experienced San Francisco employment rights attorney can fight for justice on your behalf.