New Statewide Efforts to Enforce Ban the Box.
On October 20, 2021, the California Department of Fair Employment and Housing ("DFEH") announced plans to utilize technology to conduct mass searches of online job advertisements to identify violations of California’s so-called "Ban the Box" statute. The technology helps the DFEH discover job advertisements that contain blanket statements indicating that an employer will not consider applicants with a criminal history. For instance, employers are prohibited from using language, such as "Clean Records Only" or "No Felons", in their job postings. This announcement was made after the DFEH claimed that they found more than 500 job advertisements in violation of the law in just a one-day review.
Beyond the use of technology, the DFEH is also asking applicants to report any job postings with discriminatory language. They are currently sending notices to offending employers to remove unlawful advertisements. Potential consequences for violating the law include actual damages for injuries or losses; compensatory damages for pain, suffering, humiliation, and emotional distress; punitive damages; and attorneys’ fees and court costs.
Background of the Ban the Box Law.
As previously reported, on January 1, 2018, California enacted the Fair Chance Act, otherwise known as the "Ban the Box" law, which prohibits private and public employers with five or more employees from asking about an applicant's criminal conviction history before making a job offer. The law prohibits employers from, for example, including any questions regarding an applicant's criminal history on a job application. After the job offer is made, however, an applicant's employment can be contingent on their criminal history.
If a job offer is made and an employer then intends to deny employment based upon an applicant's criminal background, the employer must follow a multi-step protocol. This is a challenging process, which includes drafting a written assessment that links the applicant's criminal history to the duties of the position and providing a copy of the assessment to the applicant. After the assessment, the employer must notify the employee in writing of the preliminary decision to disqualify the applicant based on his or her criminal history. The applicant has the legal right to respond to the notice within five days. If the applicant timely furnishes the employer with the challenge notice, then the employer must re-consider the application in light of the information provided before making a final decision. The employer must notify the applicant in writing of any final disqualification based on the applicant's criminal history.
The Cities of Los Angeles, Compton, Richmond, and San Francisco enacted similar ordinances. For instance, in 2017, the City of Los Angeles enacted a legislation called the Fair Chance Initiative for Hiring Ordinance. Unlike California’s Ban the Box statute that affects both public and private employers, the Los Angeles City ordinance prohibits private employers with more than ten employees from asking applicants about their criminal background until after a job offer is made. The Los Angeles City ordinance also created a challenging protocol (similar to California’s multistep process) that employers must follow if they wish to deny employment based upon an applicant's criminal history. Please review our previous Compliance Matters newsletter for further information on the Los Angeles ordinance.
Takeaways.
The DFEH did not clarify whether potentially unlawful job postings will be subject to review or automatically deemed a violation of the ordinance. Accordingly, employers are now prompted to re-evaluate their job postings to make sure that they do not include any unlawful language.
The DFEH released a Fair Chance Act Toolkit that includes sample forms and guides as resources for employers navigating this law. The Fair Chance Act Toolkit includes:
- Sample forms that employers can use to follow the Fair Chance Act’s required procedures;
- A guide to using DFEH’s sample forms;
- A suggested statement that employers can add to job advertisements and applications to let applicants know that the employer will consider individuals with criminal histories;
- Answers to frequently asked questions (FAQs) about the Fair Chance Act; and
- An informational video that explains the Fair Chance Act.
We advise that all California employers download and review the Fair Chance Act Toolkit. The DFEH also plans to release an interactive training and an online app in 2022.
Further, the Fair Chance Act explicitly states that this law applies in addition to other laws and local ordinances. We recommend business owners check any county or city laws that apply.
As always, if you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at (818) 508-3700 or visit us online at www.brgslaw.com.
Sincerely,
Richard S. Rosenberg
Sherry N. Shayan
Ballard Rosenberg Golper & Savitt, LLP
