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 over 5 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.
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. natlawreview.com/article/california-joining-ban-box-bandwagon
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.
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.