You may have heard about the “ban the box” law that was passed by the California State Legislature in January 2018. That law prohibits employers from asking job applicants whether they have ever been convicted of a crime. So that means that employers aren’t allowed to discriminate against you because of an old conviction, right? Nope.
The “ban the box” law was introduced as Assembly Bill 1008, and is now codified as Government Code § 12952. The goal of the new law was to help people with criminal histories secure employment without being automatically dismissed based on a single checkbox on a job application form. There are other provisions of the law which are helpful to applicants with a criminal history, too.
For example, companies are required to evaluate your application and qualifications, and to extend a conditional job offer to you before running a background check.
“But wait—you said conditional job offer. What does that mean?”
That means that an employer can make you an actual job offer, but it’s contingent upon you passing a background check. If the employer finds something—anything—on your record, they can rescind that offer.
There are limitations on that, however. The new law says that if the background check turns up some criminal history, the employer is required to make an “individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.” That means that the employer is supposed to look at the actual crime committed, and to weigh that against the job itself to see if it would pose a problem. If you were convicted of theft, for example, an employer could easily refuse to give you a job as a cashier at a store. But if you had a single DUI, there’s no rational relationship between the conviction and the job, so the employer shouldn’t deny you the job based on that. (Emphasis on “shouldn’t.”)
So why won’t it help you?
- It only applies to employers with 5 or more employees. If you work for a small business that has an owner and 4 or fewer employees, the law doesn’t apply at all.
- Many employers either aren’t fully aware of the law, or aren’t applying it properly. We have seen employment applications that still include that criminal history question. We have also seen employers who are running background checks and denying employment to people with any criminal history, even if it’s completely unrelated to the job. That’s illegal, but it’s still happening. And if you need a job, you don’t have the time or money to waste to educate every prospective employer or to drag them in to court to try to enforce the law.
- Even those employers who are applying the law correctly might discriminate against you based on your criminal background anyway. They aren’t allowed to ask you on your application whether you have any convictions, but they are allowed to run a background check and can deny your application, or even terminate you, if something shows up on your background check that they can argue is relevant to your job somehow.
Your best bet is to try to get your old conviction expunged. That way, even if an employer asks if you have been convicted of a crime, you can truthfully answer “no.” Your background check would still show the old conviction, but instead of showing as “guilty,” it would show that the charges were dismissed pursuant to the Penal Code. And potential employers are not permitted to deny you a job based on a conviction that has been dismissed. (See Labor Code §432.7.)