We update this overview of ban-the-box rules often. But laws change quickly, and we cannot guarantee all information is current. Always consult your attorney for legal advice.
Guidance
Ban-the-box compliance, targeted screens, and individualized assessments apply only when taking adverse action due to criminal records. They are not required when taking adverse action based on non-criminal records.
STATE LAWS — PUBLIC SECTOR (REPEALED EFFECTIVE JANUARY 1, 2018)
Who must follow: This ban the box law applies only if you are a public sector employer in California.
Timing of inquiry: Public employers in California may only inquire into criminal history after the candidate is deemed qualified to meet minimum requirements of the position.
Who must follow: These background screening rules applies to all employers in California with at least 5 employees, regardless of those employees’ work location.
Timing of inquiry: Employers in California may only inquire into criminal history after making a conditional offer to the candidate.
Use of criminal records: Employers with at least 5 employees are prohibited from using criminal history in employment decisions if doing so would have an adverse impact on individuals, and
the employer cannot prove such use is job-related and consistent with business necessity; or
the screening and hiring policy must be the absolute least discriminatory method for achieving the business need
Adverse action implications:
Consideration of specific criminal records.The law also specifically prohibits employers from considering the following criminal records:
An arrest or detention that did not result in conviction
Referral to or participation in a pretrial or post-trial diversion program
A conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to law
Juvenile records
A non-felony conviction for possession of marijuana that is two or more years old
Pre-adverse action notices. Pre-adverse action notices. Employers must inform candidates of the specific offense or offenses that may lead to an adverse hiring decision with the pre-adverse action notice.
Additionally, beginning January 1, 2018, pre-adverse action notices must also:
explain the applicant’s right to respond to the notice before the employer’s decision becomes final,
state the deadline for that response, and
tell the applicant that the response may include evidence challenging the accuracy of the conviction history and evidence of rehabilitation or mitigating circumstances.
Individualized assessment is required as of January 1, 2018 and must take into account the nature and gravity of the criminal offense, the time that has passed since the offense and the completion of the sentence, and the nature of the job sought.
Until January 1, we still recommend employers perform individualized assessments to easily comply with the current law’s requirements that Employers demonstrate their screening policies are job-related and consistent with business necessity.
Waiting Period: Employers MUST hold the job open for 5 business days while providing time for the candidate to respond to the pre-adverse action notice. If a candidate disputes the accuracy of information during the waiting period, the employer must wait an additional 5 business days from the date of dispute before sending final adverse action. (This requirement effective January 1, 2018)
Final Adverse Action:As of January 1, 2018, The final adverse action notice must inform the applicant of:
any existing procedure the employer has to challenge the decision or request reconsideration; and
the right to file a complaint with the Department of Fair Employment and Housing
Who must follow: This ban-the-box law applies only if you are a public sector employer for the City of Carson, CA, or a city contractor in Carson, CA.
Timing of inquiry: Public employers and city contractors in Carson, CA, may only inquire into criminal history after making a conditional offer of employment.
Adverse action implications:
Individualized assessment. This location requires employers to conduct an individualized assessment prior to sending a final adverse action notice.
Note: This law’s requirements are in addition to the requirements imposed under California state law.
Who must follow: This ban-the-box law applies only if you are a public sector employer for the City of Compton, CA.
Timing of inquiry: Public employers in Compton, CA, may only inquire into criminal history after making a conditional offer of employment.
Adverse action implications:
* Individualized assessment. This location requires the employer to conduct an individualized assessment prior to sending a final adverse action notice.
Note: This law’s requirements are in addition to the requirements imposed under California state law.
Who must follow: This ban-the-box law applies only if you are a public-sector employer in Oakland, CA.
Timing of inquiry: Public employers in Oakland, CA, may only inquire into criminal history after making a conditional offer of employment and determining the position warrants a background check.
Adverse action implications:
Pre-adverse action. The pre-adverse action process must inform applicants of the specific parts of the background check that may lead to final adverse action.
Individualized assessment. This location requires employers to conduct an individualized assessment prior to sending a final adverse action notice.
Final adverse action. The final adverse action notice must inform the applicant why they were denied employment. It must also state “past convictions disqualify candidate only for positions related to the convictions and that they may apply for other jobs with the city.”
Note: This law’s requirements are in addition to the requirements imposed under California state law.
Who must follow: This ban-the-box law applies to any private sector employer that is located or doing business in Los Angeles, CA, and that employs ten or more employees, including the owner or owners and management and supervisorial employees.
Timing of inquiry: Employers may only inquire into criminal history after making a conditional offer of employment.
Adverse action implications:
Pre-adverse action. Employers must provide a copy of the initial assessment to the candidate along with the pre-adverse action notice.
Individualized assessment. Employers in Los Angeles must conduct an initial assessment of criminal records and communicate it to a candidate prior to taking final adverse action. This initial assessment must evaluate the specific aspects of the applicant’s criminal history with risks inherent in the duties of the employment position sought. In performing the assessment, the employer shall, at a minimum, consider the factors identified by the U.S. EEOC and other factors as may be required by rules and guidelines promulgated by the DAA (Department of Public Works, Bureau of Contract Administration).
Waiting period. Employers must give applicants five business days to provide rebuttal documentation and you hold the job open for this time.
Consideration of rebuttal information. If the applicant provides any rebuttal information, employers must consider the information and perform a written reassessment of the proposed adverse action. If, after performing the reassessment of the proposed adverse action, the employer takes adverse action against the applicant, the employer must notify the applicant of the decision and provide a copy of the written reassessment.
Final adverse action. Reassessment, if conducted, must be documented and provided to the candidate with the final adverse action notice.
Note: This law’s requirements are in addition to the requirements imposed under California state law.
Who must follow: This ban-the-box law applies only if you are a public sector employer OR an employer who is a city financial assistance recipient, lessee, or a contractor or subcontractor and who employs ten or more full-time employees.
Timing of inquiry: Public sector employers may only inquire into criminal history if required to do so by law or if justified by business necessity. City contractors, subcontractors, vendors, and recipients of aid may only inquire into criminal history if required to do so by law. In the event the law requires an inquiry, the employer may only do so after a conditional offer of employment.
Adverse action implications:
Individualized assessment. Public sector employers must conduct an individualized assessment prior to sending a final adverse action notice. The assessment must be included with the pre-adverse action notice.
Final adverse action. The final adverse action process must inform the candidate how the convictions leading to rejection are related to the job.
Note: This law’s requirements are in addition to the requirements imposed under California state law.
Who must follow: This ban-the-box law applies only if you are a public sector employer for the City or County of San Francisco.
Timing of inquiry: Public sector employers in San Francisco, CA, and San Francisco County may only inquire into criminal history after a candidate has been deemed a finalist.
Note: This law’s requirements are in addition to the requirements imposed under California state law.
SAN FRANCISCO, CA — PRIVATE SECTOR (UPDATED APRIL 16, 2018)
Who must follow: This ban-the-box law, updated April 3rd, 2018, applies if you are a private sector employer located in or doing business in the city or county of San Francisco, OR you are a contractor or subcontractor for the city or county. You must also have at least 5 employees, and the position being screened for must be performed in city or county.
Timing of inquiry: Private sector employers and city contractors with more than 20 employees may not inquire into criminal history until a conditional offer has been made.
Consideration of records: San Francisco’s Fair Chance Ordinance also prohibits covered employers from ever considering the following:
An arrest not leading to a conviction, except for unresolved arrests.
Participation in a diversion or deferral of judgment program.
A conviction that has been dismissed, expunged, otherwise invalidated, or inoperative.
A conviction in the juvenile justice system.
An offense other than a felony or misdemeanor, such as an infraction.
A conviction that is more than 7 years old (unless the position being considered supervises minors or dependent adults)
Adverse action implications:
Individualized assessment: Employers must conduct an individualized assessment prior to sending a final adverse action notice.
Pre-adverse action: The pre-adverse action process must inform applicants of the specific parts of the background check that may lead to final adverse action.
Waiting period: You must wait at least seven calendar days between sending pre-adverse action and final adverse action notices. If the applicant provides rebuttal information or evidence of rehabilitation within those seven days, you must wait a “reasonable time” before taking final adverse action. We suggest waiting another full seven calendar days.
Note: This law’s requirements are in addition to the requirements imposed under California state law. The previous version of this law did not create a private right of action. Under the April 2018 revision, individual plaintiffs may now sue an employer for violations of the law.
Who must follow: This background screening law applies to all employers, whether public or private, who are registered to do business in the city, including contractors and subcontractors that contract with the city. The protections of the law are afforded to applicants applying for jobs performed in the geographic boundaries of the city, and whose application, in whole or in part, will be solicited, received, processed or considered in the city.
Requirements: An employer may not inquire into an applicant’s salary history, or use salary history as a factor when determining whether or not to hire an applicant. Additionally, an employer may not use prior salary history when determining what salary to offer a candidate. If a candidate refuses to provide salary history, that refusal cannot be used as a basis for rejecting the applicant. While an applicant can still voluntarily disclose prior salary, salary history by itself cannot be used to justify paying an applicant less for substantially similar work. An employer cannot release salary history of a current or former employee without written authorization of the employee.
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