On April 3, 2018, San Francisco amended its Fair Chance Ordinance, the city and county’s so-called “ban-the-box” legislation that limits how private employers can use an applicant’s criminal history in employment decisions. The amendments, which take effect on October 1, 2018, expand the scope and penalties of the San Francisco ordinance and add to the growing framework of ban-the-box legislation across California. The complete text of the amendment can be found here.
In June, new laws will go into effect that restrict employers’ ability to request and use criminal history information about applicants in three jurisdictions: Kansas City, Missouri; the State of Washington; and the city of Spokane, Washington.
The new year brings new laws for California employers to grapple with. Below we highlight the most significant new employment laws affecting California employers as of January 1, 2018. Companies based in California or with operations in California are encouraged to review their policies and procedures in light of these developments.
On January 22, 2017, the City of Los Angeles ‘banned the box’ when the Los Angeles Fair Chance Initiative for Hiring (Ban the Box) (the “Initiative”) went into effect, prohibiting private employers in Los Angeles “from inquiring into or seeking a job applicant’s criminal history unless and until a conditional offer of employment” is made to the individual. In doing so, Los Angeles becomes the fourth California city to ‘ban the box’ with greater protections than the state statute, and the second to do so with respect to private employers. If an employer makes a conditional offer of employment and then receives information about an applicant’s criminal history, the employer cannot take an adverse employment action against the applicant based on that history until (1) a written assessment has taken place and (2) a Fair Chance Process has occurred.
On April 3, 2015, Virginia Governor Terry McAuliffe signed an Executive Order that “bans the box” and prohibits Virginia agencies, boards, and commissions from asking questions about an applicant’s criminal history on employment applications.
“Ban the Box” Laws
At least thirteen states, the District of Columbia, and almost 100 cities and counties have passed so-called “ban the box” laws, which restrict the scope of permissible investigations into job applicants’ criminal history, and, in some cases, the timing of such inquiries.
On August 11, 2014, New Jersey’s Governor Chris Christie signed into law the “Opportunity to Compete Act.” Beginning on March 1, 2015, employers will be prohibited from publishing advertisements providing that the employer will not consider any applicant with an arrest or conviction record, and more importantly, employers will be prohibited from inquiring about applicants’ criminal records “during the initial employment application process,” orally or on job applications. “Initial employment application process” is defined as the period beginning with the initial inquiry about prospective employment until the employer has conducted a first interview, determined the applicant is qualified, and selected the applicant as the employer’s first choice to fill the position. If an applicant voluntarily discloses information regarding a criminal record, the employer may inquire about it.
Illinois recently joined a growing number of states and municipalities that have passed “ban the box” laws regulating when employers can inquire into an applicant’s criminal history.
On July 14, 2014, the Council of the District of Columbia (“D.C. Council”) unanimously voted to “ban the box,” approving a bill that will restrict when an employer may ask a job applicant about his criminal background. The bill will now go to Mayor Vincent Gray for his signature, and then to Congress for approval.
In September, the Newark Municipal Council passed Ordinance 12-1630, which prohibits any employer with five or more employees from asking job candidates before or during the application process about their criminal history (i.e., the ordinance “bans the box” from an employment application).