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California Fair Chance Act: “Ban the Box”

If you have been convicted of a felony, you are not supposed to be punished beyond the terms of your sentence. Yet, many productive and responsible members of society face discrimination when they seek employment because of their criminal history. Employers make wild and unsupported assumptions about people with felony records, and too often they exclude good people from employment.

Fortunately, the California Fair Chance Act, also known as “Ban the Box,” protects against such discrimination. Ban the Box prohibits employers from asking about felonies early in the application process as a screening mechanism. It prevents employers from arbitrarily denying employment to people with felony records. It requires employees to assess each applicant on their qualifications, and to consider the facts underlying any felony conviction on a case-by-case basis. At Spencer Young Law, we believe that a felony record should not block your access to a fair job market. Having the opportunity to put your skills to use and earn a living wage benefits both you and society.

Before an employer may inquire into your criminal history, they must make a conditional offer of employment. This requires employers to make hiring decisions based on qualifications and skills, not on stereotypes. If an employer asks you on an application or in an interview whether you have been convicted of a felony, they are most likely breaking the law.

Once an employer has made a conditional offer, they are permitted to conduct a criminal background check. Naturally, this will indicate any felony convictions you have. However, the employer may not rescind their offer based solely on such convictions. They may, however, rescind the offer if the nature of the conviction makes you unsuitable for the specific job you were offered. The key requirement is an individualized assessment, which must factor in the gravity and nature of the offense, the time that has passed, and the nature of the job offered. They must lay out their reasoning in writing, allow you to respond with favorable information about yourself, and consider what you have provided. If they stand by their decision to rescind, they must notify you in writing, including of your right to file a complaint with the Department of Fair Employment and Housing.

Example 1: Michael applies to work as a driver for a shuttle service. The online application asks, “Have you ever been convicted of a felony?” Michael served a 20-year sentence for murder and was recently paroled for good behavior. While the shuttle service may have good cause not to hire him based on the facts of his case, they have broken the law by asking him about his criminal history before considering him on his merits.

Example 2: Shirley has a long record of drug possession and distribution convictions. After serving her sentence, she applies to work as a pharmacy technician at a drug store. The drug store makes a conditional offer, performs a background check, and learns of her conviction. They explain in writing that due to the access she would have to controlled substances, they are rescinding their offer. This is an individualized assessment that takes into account the nature of her offense and the nature of the job. Provided they seriously consider the information she provides, they likely have not broken the law.

Example 3: John was convicted of burglary 25 years ago. The County makes a conditional offer to hire him as a drug rehabilitation counselor. Upon learning of his conviction, they rescind the offer. They do not provide any written justification. They have not performed an individualized assessment. Even if they have, they will have a hard time justifying how such an old conviction makes him unfit for this particular role.

Example 4: Les was convicted three years ago of felony embezzlement from her employer, where she worked as the accountant. She was sentenced to probation. Now she has been offered another job in accounting. Her employer will likely have cause to rescind the offer, because her conviction was recent and involved betraying the trust placed in her as an accountant.

If you are struggling to turn your life around after a felony conviction, don’t be ashamed of your past. Be proud of who you are now. Call a compassionate and knowledgeable employment attorney at Spencer Young Law today for a free and confidential consultation.

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