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Is California’s Ban the Box Law a Good Solution?

November 18, 2019

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  • California’s Assembly Bill (AB) 1008 now makes it an unlawful practice for an employer to ask about an applicant’s criminal history before a conditional offer has been made. Similar bills have been labeled throughout the country as “ban-the-box” laws. In other words, applicants no longer have to face that small check box which many worry about.

    Effects of the Bill

    This bill appears to create a level playing field for all applicants by allowing each individual to be examined by his or her merits, separate from his or her past. Specifically, the bill seems to create a state of equal opportunity in which one’s criminal background is left just there – in the background. However, the practical effects of this bill are still unknown. For instance, what if an employer makes an offer to an applicant, only to discover afterwards that a criminal history exists? Given that, the employer is generally within his or her rights to rescind the offer.

    The question then becomes: what is the point of this bill? Its effect is more idealistic than pragmatic. Should an employer find an applicant to be a fit candidate for a given job before looking into one’s criminal background, the hope is that the employer may still consider the applicant. Essentially, lawmakers are hoping to remove some of the prejudices that an employer may have prior to finding out about a criminal past. Additionally, the application process itself costs employers time and money. These two factors could lead to an optimistic result in that, if a criminal record comes up, an applicant’s value may still be recognized.

    Recourse for Discrimination

    However, there is very little legal recourse to address discrimination on the basis of a conviction. If an employer wishes to rescind his or her conditional offer, the employer is only required to produce a notice of withdrawal and a copy of the criminal conviction record used as the basis for rescinding his or her offer. Otherwise, no justification is needed.

    An applicant does have 5 days to respond to this notice. Then, he or she is given an additional 5 days to produce evidence that may challenge the employer’s conclusion. Yet, the employer still retains his or her right to finalize the decision. Additionally, while the applicant does have the right to file a complaint, it’s still difficult to determine why an offer was rescinded without a written reason provided by an employer. Additionally, the bill doesn’t clearly mention which steps to take should an applicant file a complaint to the department.

    Conclusion

    Essentially, California’s AB 1008 seems to fall short, and fails to provide a certain way to minimize employment discrimination based upon a criminal conviction. While AB 1008 does provide a sense of hope for fairness in the job market, those who are eligible should seek an expungement of their criminal record instead. A California expungement results in the conviction being set aside and dismissed. However, it does not result in the record being concealed – a form of relief that is typically available for arrest records instead known as sealing an arrest record in California.

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