Over the past several years, “ban the box” or “fair chance” laws have continued to spread at the local, county and state levels. “Ban the box” is the practice of moving the criminal history inquiry to later in the hiring process. However, several jurisdictions have taken a step beyond regulating the timing of the criminal history question to enact comprehensive “fair chance laws.” With fair chance laws, employers that removed the criminal history question from their initial employment application or until later in the hiring process, such as after a conditional offer, aren’t out of the woods, as these laws impact the adverse action process and impose many additional requirements.
Employers need look no further than California for examples of extensive, and competing, fair chance law requirements. This includes a new statewide law – Assembly Bill 1008 – that will go into effect on January 1, 2018.
AB 1008 will apply to any employer with five or more employees. In terms of the criminal history question, employers cannot include it on any application. Additionally, employers may not inquire into or consider the conviction history of an applicant until after a conditional offer.
That part of the law is fairly straightforward and in line with many other ban the box and fair chance laws. However, AB 1008 imposes specific requirements for the adverse action process that must be followed before making a final adverse employment decision, such as not hiring an individual. Prior to making a preliminary decision, employers must conduct an individualized assessment to determine whether the conviction has a direct and adverse relationship with the specific duties of the position.
This includes consideration of the commonly cited Green factors from the Equal Employment Opportunity Commission:
Following this individualized assessment, employers must notify the individual in writing if a preliminary decision is made that the conviction history disqualifies the applicant from employment. The notification must include:
Response & Final Decision
The applicant must have at least five business days to respond before making a final decision. If within that five business days the applicant disputes the accuracy of the information and the applicant is taking steps to obtain evidence supporting that assertion, the applicant then has an additional five business days to respond to the notice. The employer must consider additional information provided by the applicant before making a final decision.
If a final decision is made, the employer must notify the applicant in writing of:
Employers must also comply with statewide regulations that went into effect on July 1, 2017. These regulations actually do not impact the timing of the criminal history question, but they do outline information that employers cannot consider in a hiring decision as AB 1008 does. Additionally, the regulations outline adverse action process requirements that include conducting an individualized assessment if no bright line disqualification rule is used. Further, all covered employers – whether using a bright line disqualification policy or individualized assessments – are required to “give the impacted individual notice of the disqualifying conviction” and a reasonable opportunity to present evidence that the information is factually inaccurate. If the criminal history is factually inaccurate, employers may not consider the conviction information in a hiring or employment decision. The regulations do not speak to how long the individual must be given to respond.
Making matters worse for employers, Los Angeles and San Francisco also have fair chance laws in place that include additional impacts to the adverse action process in particular.
Under the Los Angeles Fair Chance Initiative for Hiring, and subsequent rules and regulations, employers must follow the “fair chance process” if considering taking adverse action, which includes providing written notification, a copy of the written assessment they must complete and then waiting five business days before making a final decision. If an applicant provides additional information or documentation, employers must take that into consideration and perform a written reassessment of the proposed adverse action. Finally, if adverse action will still be taken, the applicant must be notified and provide a copy of the written reassessment.
San Francisco’s Fair Chance Ordinance requires employers to conduct an individualized assessment prior to taking adverse action. Employers must notify the individual of the items forming the basis for the prospective adverse action and provide at least seven days before a final decision is made.
The laws in San Francisco and Los Angeles also include provisions relating to posters in the workplace, job advertisements and employer record-keeping requirements. All four laws outline specific items that employers cannot consider in a hiring process, such as an arrest that did not lead to a conviction, participation in a diversion or deferral of judgment program, a conviction that is more than seven years old and a conviction that has been dismissed or expunged. The regulations prohibit employers from considering any convictions for marijuana possession beyond two years.
Employers hiring in California should engage with qualified legal counsel to help navigate this complicated, and often conflicting, fair chance law environment.
To learn more about Ban the Box legislation on the state, county and city level, go to http://go.asurint.com/ban-the-box-whitepaper and download Asurint’s whitepaper.
Asurint is revolutionizing your screening process. Utilizing technology based screening solutions, Asurint yields turnaround times 24-36 hours faster than competitors, improves the accuracy of search results and provides automated compliance practices. Asurint is continuously innovating and developing solutions to optimize your background screen process.