This post was authored by Victoria E. McDermott.
California’s new Ban-the-Box Law is now in effect, and employers across the state are questioning its impact on their hiring practices. Assembly Bill 1008, codified as section 12952 to the Fair Employment and Housing Act (FEHA), contains new state-wide restrictions on how an employer uses an applicant’s criminal history in pre-hiring and personnel decisions. While the law may seem like old hat for California’s public agencies — Labor Code section 432.9 already prohibited a public agency’s initial use of criminal convictions in the hiring process — this new law contains significant changes for public and private employers alike.
Since we already provided an overview of Ban-the-Box in our annual Legislative Roundup [https://www.lcwlegal.com/news/ab-1008-extends-ban-the-box-to-all-employers-and-delays-review-of-applicants-criminal-history-until-after-conditional-offer] (full text of the statute is available here), our focus here will be on the practical aspects of incorporating this new law into your existing hiring practices.
Applying Government Code Section 12952
Q: Since the new law makes it an unlawful employment practice for an employer to inquire about or consider an applicant’s criminal history before extending a conditional offer of employment, should the employer make the conditional offer of employment in writing?
A: Yes. Although not required, we recommend that the conditional offer of employment be in writing to prevent any misunderstanding between the applicant and employer.
Q: Can the conditional offer be conditioned on the applicant passing both a criminal conviction background check and a medical exam.
A: Yes. The written conditional offer should clearly state that it is contingent on the employee passing both the criminal background check and the medical exam.
Q: Which goes first, the medical exam or the criminal background check?
A: We recommend that you proceed with the criminal background check before conducting the medical exam.
The Americans with Disabilities Act (ADA) and FEHA contain regulations on when an employer may request medical information in the application process. Under both, the employer cannot request such information until after it extends a conditional offer of employment. In order for an employer to issue what is considered a real offer of employment under the ADA and FEHA, an employer must have either completed all non-medical components of its application process or be able to demonstrate that it could not reasonably have done so before issuing the offer. With the new Ban-the- Box law, California employers cannot reasonably conduct a criminal background check before extending a conditional offer. Additionally, several courts have held that a medical examination must be the last step in the process after a conditional offer of employment. (See e.g. Leonel v. American Airlines, Inc. (9th Cir. 2005) 400 F.3d 702.) Therefore, while an employer must now issue a conditional offer of employment before inquiring into an applicant’s criminal history, any required pre-employment medical examination should occur only after completing both the criminal history inquiry and any other background check contingencies that comprise the hiring process.
Q: Should an employer wait until after a conditional offer is made to conduct a motor vehicle history report with the DMV since it may reveal DUI convictions?
A: The best practice is to wait to conduct the motor vehicle check until after the conditional offer is made because it may reveal conviction history information. It is permissible to ask if an applicant has a valid driver’s license or information about the applicant’s collision history as these questions alone do not solicit criminal conviction information.
Because Section 12952 is part of FEHA, an aggrieved applicant may sue for the full range of FEHA damages available, including compensatory damages, attorney’s fees, and costs. Thus, to limit your potential exposure, we recommend that you also take the following steps:
- Make sure hiring staff are fully informed on when criminal background information is to be considered in the hiring process.
- Review and update your employment applications.
- Review and update background check procedures.