Individuals with criminal records unquestionably have a more difficult time obtaining gainful employment than individuals without criminal records. In fact, in a 2007 study, only approximately 40 percent of employers in four major metropolitan areas reported that they would “definitely” or “probably” hire applicants with a criminal history.1 In the same study, which also looked at the rates of “call backs” or job offers for applicants with different demographics, job offers for whites with criminal records fall by about half, and are reduced by that much or more for black ex-convicts.2
As a result, an increasing number of states, cities, and counties across the country are enacting what is widely known as “Ban the Box” laws, which are intended to provide a fair chance to job applicants with criminal histories so that their qualifications for a position are considered first and without the stigma of their criminal records. This has the effect of easing hiring barriers and creating a more level playing field in competing for jobs. Indeed, proponents and opponents of “Ban the Box” legislation have hotly debated whether prospective employers’ consideration of applicants’ criminal histories disparately impacts applicants in certain demographics.
While the scope of “Ban the Box” laws vary, at a bare minimum, these laws prohibit employers from inquiring about an applicant’s criminal history until after the initial interview (and sometimes delay this inquiry until even later in the hiring process).
California enacted its first “Ban the Box” law in 2010, when then-Governor Arnold Schwarzenegger ordered certain questions regarding conviction history removed from the State of California’s employment application.
Effective July 1, 2014, California Labor Code Section 432.9 extended the prohibition to all state and local agencies, with an exception for those agencies required by law to conduct a criminal history background check. Under Labor Code Section 432.9, state and local agencies are permitted to inquire about criminal conviction history after “determin[ing] the applicant meets the minimum employment qualifications” – thereby affecting only when – and not whether – public employers may consider criminal conviction history in making employment decisions. Notably, this language leaves the door open for employers to decide, after the application is submitted, when this qualification is met.
Labor Code Section 432.7 goes further to preclude both public and private employers from seeking information, or basing a condition of employment on: (1) any arrests that did not result in a criminal conviction; (2) information concerning a referral to or participation in a pretrial or post-trial diversion program; (3) information concerning a conviction that has been dismissed or sealed; or (4) information concerning any type of juvenile proceeding. Section 432.7 does, however, allow employers to seek information concerning arrests that are still pending (“unresolved arrests”).
And San Francisco and Los Angeles have gone even further than California state law to prohibit private employers from including questions about criminal history on job applications.
II. San Francisco’s Fair Chance Ordinance
The San Francisco Fair Chance Ordinance (enacted in 2014) prohibits all public and private employers with applicants or employees for positions within the City and County of San Francisco and with at least 20 employees, regardless of location, from seeking information from job applicants or employees at any time concerning (1) an arrest not leading to a conviction; (2) participation in a diversion or deferral of judgment program; (3) a conviction that has been dismissed; (4) information concerning any type of juvenile proceeding; (5) a conviction that is more than seven years old; or (6) anything other than a felony or misdemeanor. Additionally, employers are not allowed to conduct a background check or ask an applicant for their conviction history or information regarding unresolved arrests until after the first interview. And when making a decision based on an applicant’s or employee’s conviction history, an employer may only consider convictions that are directly and specifically related to the job, and must take into account how much time has passed since the conviction or unresolved arrest, as well as evidence of inaccuracy, rehabilitation, or other mitigating factors. The ordinance requires all employers to include the following language in all job postings: “The Employer will consider for employment qualified applicants with criminal histories in a manner consistent with the requirements of this Article.” Employers also must post a notice at the workplace with a description of the prohibitions and requirements set forth in the ordinance, which can be obtained from the Office of Labor Standards Enforcement.
III. Los Angeles’ Fair Chance Initiative for Hiring (Ban the Box)
The “Los Angeles Fair Chance Initiative for Hiring (Ban the Box)” went into effect on January 22, 2017. This law is more expansive than its California and San Francisco counterparts insofar as it applies to all private employers with 10 or more employees who are located in or perform work in the City of Los Angeles. However, Los Angeles’s Ban the Box law does not apply to public employers and only extends the protection to applicants (broadly construed to include any individual who submits an application or other documentation for employment, whether for full-time work, part-time work, temporary or seasonal work, work through a temporary agency, etc.) and not to employees.
The Los Angeles ordinance also differs from the San Francisco ordinance in that it requires employers to wait until after it makes a conditional offer of employment before inquiring into the applicant’s criminal history. “Criminal History” is more narrowly defined under the Los Angeles ordinance as compared to the San Francisco ordinance, as it is limited to a conviction of a felony or misdemeanor that has led to probation, fine, imprisonment, or parole. This means that under Los Angeles’s Fair Chance Initiative for Hiring, employers generally may not ask any question on a job application about an applicant’s criminal history, ask about an applicant’s criminal history during a job interview, or independently search for criminal conviction information or run a criminal background check before making a conditional employment offer – but still may ask applicants about unresolved arrests. There are some limited exceptions to the prohibition on asking about criminal history, including when an employer is required by law to run a criminal background check, when the position sought requires the possession or use of a gun, when the law prohibits a person who has been convicted of a crime from holding the position sought, or when the employer is prohibited by law from hiring an applicant who has been convicted of a crime.
Similar to the San Francisco ordinance, the Los Angeles ordinance requires all employers who withdraw a conditional offer of employment on the basis of the applicant’s criminal history to perform a written assessment linking the specific aspects of the applicant’s criminal history with the job duties of the position being sought. The written assessment should also take into account the factors established by the U.S. Equal Employment Opportunity Commission (including conducting an individualized assessment), among others.3
While these laws are well-intended, recent studies confirm that there have been negative impacts on minorities, namely black and Hispanic men, when applying for jobs since the Ban the Box laws went into effect. In one of the studies, for example, thousands of fake job applications were submitted before and after the laws went into effect in New York and New Jersey, randomly assigning race (black or white) and criminal history to each application. The study found that before the Ban the Box laws went into effect, white applicants received seven percent more callbacks than similar black applicants, but after the laws went into effect that gap increased to 45 percent.4 In another study, the authors found that Ban the Box laws decreased the probability of being employed by 5.1% for young, low-skilled black men, and by 2.9% for young, low-skilled Hispanic men.5
Although these studies are not conclusive, they may cause lawmakers to rethink how to make the Ban the Box laws more effective in the future. But one thing is certain, these laws are here to stay, and there are more like them to come. As such, employers should exercise caution in relying upon information about convictions when making any employment decisions, including hiring, promotion, or termination. In addition, employers must remain vigilant about staying apprised of the ever-changing laws and keeping their managers and Human Resources personnel up-to-date on applicable laws to ensure appropriate compliance – not least of which because a violation of any of these laws comes with a monetary fine (ranging from $50 to $2,000, depending on the jurisdiction and occurrences).
** If you have any questions or would like the most up-to-date information regarding the status of the Ban the Box laws in cities and states where you do business, you may contact the authors of this post, Julia Y. Trankiem at firstname.lastname@example.org and Sonya D. Goodwin at email@example.com.
Sonya D. Goodwin is an associate at Reed Smith LLP in Los Angeles. Sonya counsels clients on a wide range of labor and employment matters, including, but not limited to, wage and hour class actions, FEHA claims, and whistleblower claims in federal and state court, as well as arbitration. For more information about Sonya, click here.
Julia Y. Trankiem is a partner at Reed Smith LLP in Los Angeles. Julia’s practice focuses on the representation of management in a broad range of labor, employment, and employee benefits matters under state and federal law. For more information about Julia, click here.
1 Harry J. Holzer, Collateral Costs: The Effects of Incarceration on the Employment and Earnings of Young Workers, Georgetown Univ., Urban Institute and IZA, DP No. 3118, 14 (Oct. 2007).
3 The EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, updated in April 2012, provides guidance on proper and improper disqualification of an employee or applicant based on his or her criminal record. The different factors that the EEOC sets forth in its guideline to assess whether a criminal exclusion is “job related and consistent with business necessity” include: (1) “the nature and gravity of the offense or conduct”; (2) “the time that has passed since the offense or conduct and/or completion of the sentence”; (3) “the nature of the job held or sought”; and (4) an individualized assessment to allow the individual to explain why he should not be excluded based on his criminal history. The EEOC provides further guidance on the individualized assessment, namely, (1) “[t]he facts or circumstances surrounding the offense or conduct,” (2) “[t]he number of offenses for which the individual was convicted,” (3) “[o]lder age at the time of conviction,” (4) “[e] vidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct,” (5) “[t]he length and consistency of employment history before and after the offense or conduct,” (6) “ [r]ehabilitation efforts, e.g., education/training,” (7) “[e]mployment or character references and any other information regarding fitness for the particular position,” and (8) “[w]hether the individual is bonded under a federal, state, or local bonding program.”
4 Amanda Agan and Sonja Starr, Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment, U. of Mich. Law & Econ Research Paper No. 16-012, at 4 (June 14, 2016).
5 Jennifer L. Doleac and Benjamin Hansen, Does ‘Ban the Box’ Help or Hurt Low-Skilled Workers? Statistical Discrimination and Employment Outcomes When Criminal Histories Are Hidden, 62 Research Briefs in Economic Policy, Oct. 2016, at 2.