Convicted felons who’ve paid their debt to society, often face significant challenges when seeking to turn their lives around. Roadblocks to obtaining employment can continue to dog a felon for years, making it difficult for them to contribute positively to society. Employment applications frequently require felons to disclose past convictions, making the already difficult task of finding employment, even more challenging. The movement led by civil rights activists and legal professionals to remove questions about past felonies has become known as the “ban the box” movement—a reference to a box applicants were asked to check indicating if they had been convicted of a felony.

Frustratingly, job searching is just one part of the tapestry of challenges a felon faces. According to statistics compiled in a recent report by non-profit organization Californians for Safety and Justice, convicted felons have literally thousands of limitations to consider when reintegrating with society:

“In California, people with felony convictions released from prison face 4,800 restrictions that limit their access to jobs, housing and educational opportunities. Of these restrictions, 58 percent are employment related,” the report noted.

These restrictions can particularly affect people of color, who experience disproportionate conviction rates for crimes such as drug use. This, despite the fact that white people use drugs at similar rates.

Now, thanks to the signing of a recent assembly bill by Governor Jerry Brown, convicted felons seeking a better life for themselves through employment have a little more breathing room.

Banning the Box

On October 14, Governor Jerry Brown signed State Assembly Bill 1008, which prohibits specific questions from being asked on job applications. Prior to its signing, employers were allowed to include questions on job applications about criminal conviction history, including felonious convictions.

This new legislation will make it unlawful under the California Fair Employment and Housing Act (FEHA) to include questions about past criminal convictions on employment applications. To be clear, this law does not completely prohibit an employer from eventually asking about job candidate’s criminal history (more on that later), however, this law will make it easier for job applicants to advance further in the hiring process before being scrutinized for their criminal history.

Employers Will Eventually Be Able to Inquire About Felony Convictions

As mentioned in the previous section of this article, this law will not totally prohibit an employer from asking an applicant about their criminal history. However, the employer won’t be able to ask about felony convictions until an offer of conditional employment is made. Once a conditional offer of employment is made, an employer is permitted to conduct a background check into the applicant’s criminal history.

What if A Candidate is Denied Employment Based on a Past Felony Conviction?

If, after making an offer of conditional employment, a business or corporation conducts a background check and discovers an applicant’s felony conviction, the company can decline to hire the applicant. However, the law requires employers who make such a denial to take an additional step in denying employment. Specifically, the employer must assess whether the applicant’s conviction history has a direct and adverse relationship with the duties of the job. The employer must then provide the applicant with written notification of that decision.

A Word About the Fair Employment and Housing Act

While there are a number of different laws that protect the rights of employees, the specific law containing the elements of the recently signed assembly bill is the Fair Employment and Housing Act (FEHA). Unlike the federal law it closely mirrors, FEHA can be used against companies with as few as five employees. Additionally, this law can be against public agencies,  private individuals or corporations.

Have Questions? Ask an Employment Attorney

If you believe you have been unfairly denied employment in violation of state or federal law, don’t hesitate to discuss your issue with a qualified attorney. Remember, the clock starts ticking once a violation occurs. The statute of limitations allowing a lawsuit to be filed can vary depending on the specifics of the case.

If you have questions about employment application rules, or some other employment law question, contact this office for more information.