Ban-the-Box Legislation Hits California – Demonstrates Imminent Change to Employment Screening

California is the latest jurisdiction to pursue what is known as Ban-the-Box legislation, an effort to remove the question of a criminal history from applications thereby, in theory, creating a level field of job opportunity.  It appears that California will be the next state to enact ban-the-box legislation and this action, once again, points to an urgent and immediate need for all hiring managers and/or HR departments to work with a well-qualified third-party pre-employment background screening agency to remain in compliance with law.

California is putting a bill forth that will make it unlawful for an employer with five or more employees to inquire about or even consider an applicant’s criminal conviction history until a conditional offer is made.  The bill is called California’s Fair Employment and Housing Act or FEHA.  They now join numerous other States that are considering such an Act as well as those that have already passed Ban-the-Box legislation.  If the California bill is passed it will require employers that have 5 or more employees to follow the new rules.  This means changing their pre-employment screening policies and procedures as to not discriminate at the beginning of the job application process as to whether or not an applicant has a criminal background record.  Only after a conditional offer is made would the employer be able to run a criminal background check on the prospective employee.

Ban-The-Box the California way clearly makes evident the abundance of evidence showing employers around the country that significant change needs to be made in regards to pre-employment background screening policies and procedures.

The effects of the new California ban-the-box legislation could be far-reaching.

From National Law Review website (Sep. 25, 17):

The bill would make it unlawful under California’s Fair Employment and Housing Act (“FEHA”) for an employer with five or more employees to inquire about or consider an applicant’s conviction history until the applicant has received a conditional offer of employment. Under the bill, an employer would be prohibited from:

Including on any employment application a question that sought disclosure of an applicant’s conviction history;

Inquiring into or considering the conviction history of the applicant, until after the employer has made a conditional offer of employment; and

Considering, distributing, or disseminating information relating to arrests that do not result in a conviction, diversion programs, or convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.

With every change in law HR departments and hiring managers should be reviewing pre-employment background screening policies and procedures.  The changes to California law, the most populous state in the country, could have overreaching consequences into other states.  Staying ahead of changes in law is what third-party background screening companies do and it is incumbent on HR Departments to also stay ahead of change.

The new law in California is specific as to who it will affect and who it will not.

From National Law Review website (Sep. 25, 17):

The bill does not apply to the following positions: (1) a position for which a state or local agency is otherwise required by law to conduct a conviction history background check; (2) a position with a criminal justice agency as defined by the California Penal Code; (3) a farm labor contractor as defined by the California Labor Code; and (4) a position where an employer is required by state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history.  ibid

Laws governing the use of public records, specifically criminal history records, as shown by the activity in the legislative branch in California demonstrates that change is inevitable and that means hiring procedures will need to change.  It can be overwhelming to keep up with such changes and that is why it is always a best practice for employers to work with a professional third-party employment screening company to get all the current, up-to-date and accurate background information necessary in assisting with the hiring of new employees, volunteers and contractors.

To read more about California’s new bill and the changes in employment screening policies it will require if passed into law along with the impact it could have on other US States read recent press release:

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