California Passes Comprehensive Ban-the- Box Law

A new law will limit a California employer’s ability to ask applicants about criminal history.

Last month, California Governor Jerry Brown signed a statewide ban-the-box law that will apply to both private and public employers. Among other things, the law will prohibit employers from considering an applicant’s criminal history until the later stages of the hiring process. The law takes effect on January 1, 2018.

Existing law makes it illegal for California employers to consider certain types of criminal records during the hiring process, including arrests that did not lead to conviction, pretrial or posttrial diversion programs, sealed records, certain marijuana offenses, and juvenile records. California also currently has a ban-the-box law for government employers only, which prohibits them from asking about criminal history until they decide that the applicant has met the minimum qualifications for the job.

The new law repeals the existing ban-the-box for government employers and amends the California Fair Housing and Employment Act (FEHA) to include a ban-the-box provision that will apply to all employers—private and public—with five or more employees. These employers may not:

  • ask about criminal history on an initial job application, or
  • ask about or consider criminal history until an applicant has received a conditional offer of employment.

Once the employer makes a conditional offer to an applicant, it may consider certain types of convictions. However, the employer must make an individualized assessment as to whether the conviction makes the applicant unfit for the position. The employer must also provide the applicant with written notice and an opportunity to respond before denying employment based on the conviction. To learn more about California’s ban-the-box law, see our article explaining California protections for applicants with a criminal past.

Effective date: January 1, 2018