California to Ban Criminal History Box on Government Job Applications

Author: David B. Weisenfeld, XpertHR Legal Editor

October 15, 2013

California Governor Jerry Brown has signed a law that will prohibit all state and local government employers in the Golden State from asking for criminal record information on job applications. The new law makes California the 10th state to have adopted a "Ban the Box" measure.

Ban the Box refers to the box on initial employment applications that prospective employees are often asked to check off if they have ever been convicted of a crime. The use of this criminal history box as a pre-screening measure is often seen as discriminatory against blacks and other minority groups.

Since 2010, it had been California state policy to exclude criminal history inquiries from job applications. But effective July 1, 2014, AB 218 will turn that policy into state law. A number of big California cities, including San Francisco and Oakland, have already removed criminal history questions from job applications.

State and local government employers in California may still conduct background checks and ask about an applicant's criminal history later in the hiring process. Also, applications for jobs that by law require a criminal background check - for example, police officers -- will be exempt. The new law does not apply to private employers.

Four states have passed ban the box laws that apply to both public and private employers, including:

Other states that, like California, ban the box on initial job applications at least for state employers include Colorado; Connecticut; Illinois; Maryland; and New Mexico.

EEOC Opposes Criminal History Box

The Equal Employment Opportunity Commission (EEOC) has taken the position that no employer should ask about criminal history on job applications. The EEOC also made clear in its April 2012 Enforcement Guidance that before any employer precludes an applicant with a criminal record from employment, it should engage in an individualized assessment to give the applicant a chance to explain the circumstances and why they should not exclude him or her from employment.

According to the EEOC, this assessment should take the following factors into account:

  • The nature of the crime;
  • The time elapsed since the crime was committed; and
  • The nature of the job.

The agency explained that this individualized assessment serves as a safety net for employers to make sure they are not "mistakenly screening out qualified applicants or employees based on incorrect, incomplete or irrelevant information."