California's Ban the Box Ordinance Creates a New Protected Class of Employment Applicants

Recently, the California Legislature enacted Government Code §12952.  This legislation follows a trend of history-making legislation aimed at reducing the barriers to employment for people with conviction histories and to decrease unemployment in communities with concentrated numbers of people with conviction histories. California’s initial application of this policy only applied to government agencies and in 2015, President Obama applied the rule to federal agencies. Nationwide, 29 states and over 150 cities and counties have adopted a similar “Ban the Box” law and over 300 private companies have signed the White house Fair Chance hiring pledge that was initiated by President Obama.

            Specifically, California Government Code §12952, the most far reaching piece of legislation thus far passed in California, makes it unlawful for any company doing business in California with five or more employees to inquire into or consider an applicant’s conviction history in advance of a conditional offer.

            Calif. Gov. Code §12952 also requires that a company who intends to deny an applicant a position of employment solely on the basis of that conviction history to make an individualized assessment of whether the applicants history has a direct and adverse relationship with the specific duties of the job; and, to give the applicant notice and the opportunity to respond before the employer makes a final decision.

            In making this “Ban the Box” law apply broadly to private employers, it is clear that the legislature intended to impose a duty on all companies, with limited exception, to give a fair chance to otherwise qualified and rehabilitated employees.  

            Under “Ban the Box” statutes, it may be perfectly reasonable for a company to disqualify an applicant who is newly released from prison where he/she served two years for financial fraud from a job as an accountant. There, the nature of the crime is similar to the interests that the company would seek to protect; and, two years may not be long enough of a history of rehabilitation. However, when a crime is in an applicant’s remote past and has no nexus to the job for which he/she applies, it becomes more difficult to justify denying that applicant the job.

As well, there may be occasions where an applicant is hired into the job, the employer later learns of the conviction and, on that basis, terminates the employee. Given the legislative intent of Gov. Code §12952, terminating an employee in this way would be contrary to public policy of the state of California and thus create liability for Wrongful Discharge. Indeed, California has made it clear that employers may not discriminate against the class of people who have criminal backgrounds when employers are making employment decisions.