Will Background Checks in California Stop?

Could California Be About to Ban Most Background Checks? It's Possible

Background check compliance has become a more complicated process in recent years with the proliferation of "ban the box" and fair chance laws nationwide. Similar legislation now even exists at the federal level for some types of government hiring. For businesses operating in multiple states, this patchwork of regulation can pose serious challenges for administration and oversight. Even for companies working in one state, frequent changes to the law can be tough to follow.

For the most part, the "ban the box" movement has resulted in legislation that did not pose a serious burden on how employers select their employees. Although a few more steps could be involved, employers maintained the freedom to vet candidates and consider all the facts. In some cases, the laws can lead to successful instances of businesses hiring individuals they might once have passed over.

In California, however, a newly proposed bill in the state legislature could dramatically impact how virtually every business in the state operates. Already home to one of the country's strictest and most detailed Fair Chance laws, the legislation currently before a committee would institute a near-total ban on background checks besides for positions authorized by law to do screening. The authors of the bill say that the goal is to tear down the most significant barrier keeping many Californians from getting a job.

Under the law, employers should provide applicants with a list of all job duties where a relevant conviction could mean unsuitability. A list of pertinent legislation for controlled industries that require background checks, such as banking or childcare, must also be provided when applicable.

Furthermore, employers would, among many other stipulations, not be able to:

• Post any job advertisement with language suggesting a limitation on hiring people with criminal records.
• Ask applicants about criminal history in person or on an application form.
• Ask about an applicant's social media presence. 
• Reject an application because of criminal history information.

The law makes only a few exceptions based on existing requirements for specific jobs or industries. Civil penalties would apply to any company violating the law. In cases where criminal background checks are permissible, individualized assessments are mandatory, and applicants would have ten business days to provide alternative information in response to an adverse decision.

The language of the bill, as written, is striking. It goes far beyond any other measure currently in force, even elsewhere in California, where one county banned background checks for rental tenants. Though the courts struck down a similar rental measure in Seattle, it signals a growing trend in some circles against screening as it currently exists.

The California bill's fate remains uncertain as it slowly moves committees in the legislature, but employers based in or operating in California should pay close attention to its evolution. If passed in its current form, the hiring processes for tens of thousands of businesses would need to be wholly retooled—and employers could lose a valuable tool for protecting themselves. Big changes in background check compliance could be on the way for West Coast employers in one form or another.