New Law Says Employers Can’t Ask Applicants About Criminal Past
An estimated one out of three California adults has an arrest or conviction record, according to the nonprofit National Employment Law Project. If employers weed out applicants who check “yes” for the Have you ever been convicted of a crime? question on a job application, they could be preventing millions of Golden State residents from getting a paycheck.
These applicants also tend to be people of color, since African-Americans and Latinos are arrested at much higher rates, often for crimes committed in equal numbers by whites.
Gov. Jerry Brown recently signed sweeping “ban-the-box” legislation that, starting Jan. 1, prevents employers from asking applicants about conviction history on an initial application for employment. The bill’s lead author, Assemblyman Kevin McCarty of Sacramento, said in a statement that it “will eliminate barriers to employment, reduce recidivism and give people with conviction histories an opportunity to demonstrate their ability to become productive, contributing members of our society.”
Local co-authors of the legislation include Assemblyman Chris Holden of Pasadena, Assemblyman Mike Gipson of Carson and Sen. Steven Bradford of Gardena.
The bill joins AB 218 of 2013, which pretty much applied the same rules to government employers. Additionally, the city of L.A. passed its own “ban-the-box” law for private employers that took effect in January. All these laws say employers can conduct background checks, but not until candidates receive a job offer.
The idea is that people disproportionately shut out of the job market — sometimes, arguably, people who need a regular paycheck the most — are shown the door the minute they check that box. With conviction records off the table, job seekers have a shot at showing who they really are, supporters of the legislation say. “This bill allows employer and employee to have that face-to-face and hear that human story,” says Kim Carter, executive director of the Time for Change Foundation, which supported the bill.
“The problem is applicants are being denied at step one of the process,” adds Beth Avery, staff attorney with the National Employment Law Project. “They have no chance to point out, ‘Hey, this is what happened.’ Employers just see that box checked.”
Avery explains that employers can still deny employment based on a subsequent background check, but they need to be mindful of state and federal employment law if they decide to do so. Under 2012 U.S. Equal Employment Opportunity Commission (EEOC) guidelines, and under similar rules adopted July 1 by the state’s Department of Fair Employment and Housing, an employer can be found in violation of anti-discrimination law “if screening people based on criminal records is having disproportionate impact on people of color,” she says.
Folks who believe they’ve faced discrimination under an employers’ background check can file a complaint with the state fair employment agency.
“There are people who are struggling with old convictions not related to the job, but who are still being denied employment,” Avery says. “But some people have really turned their lives around.”