Abiding By “Ban the Box” At Your Ministry
Is your ministry abiding by the new California “Ban the Box” initiatives? Many of our ministries, Christian churches, schools and colleges, and religious non-profits are wondering how AB 1008 will change ministry when it comes to hiring staff and volunteers.
A swarm of assembly bills, senate bills, and laws that have recently passed have churches or faith-based organizations (510(c)(3)’s) wondering what really applies to their unique employment environment. It’s true, the effort it takes to figure out what applies and what doesn’t apply to the church or faith-based organization as an employer can be quite difficult. It takes time, research, and knowledge of existing laws to interpret and apply new laws.
It’s probably a good idea to start off this article with some background on the history behind AB 1008. Knowing a little more about how the “Ban the Box” law came to be will give us the best foundation to determine if AB 1008 applies to ministry. In 2013, Governor Brown signed AB 218 which added section 432.9 to the Labor Code. Labor Code 432.9 prohibited state and local agencies from asking an applicant to disclose criminal conviction history until the agency determined the applicant met the minimum employment qualifications for the job.
In 2015, then President Barack Obama directed all federal agencies to “Ban the Box” and refrain from asking applicants about their criminal convictions on the initial job application.
Nine states and 15 major cities including Los Angeles and San Francisco, have already adopted fair chance hiring laws that cover both public and private employers. Over 20 percent of the US population lives in a state or city that prohibits private employers from inquiring into an applicant’s criminal conviction record at the start of the hiring process. See Los Angeles and San Francisco Ordinances below:
Los Angeles “Ban the Box” – Ordinance 194852
A new Article 9 was added to Chapter XVIII of the Los Angeles Municipal Code to read as follows:
The primary purpose of the restrictions imposed by this ordinance is to promote public health, safety and welfare by eliminating a barrier to employment of persons who have been convicted of crimes, reducing recidivism, facilitating the reintegration into society of persons with conviction records and decreasing unemployment in parts of the community in which persons who have been convicted of crimes predominately reside. This ordinance shall be referred to as the Los Angeles Fair Chance Initiative for Hiring (Ban the Box).
This Los Angeles ordinance limits private employers in Los Angeles from inquiring into or seeking a job applicant’s criminal history unless and until a conditional offer of employment has been made to that individual. (See ordinance for further details).
San Francisco “Ban the Box” Ordinance –Article 49 San Francisco Police Code
The Fair Chance Ordinance of San Francisco covers employers in the city and county with 20 or more employees worldwide. The employer shall not require applicants or potential applicants for employment or employees to disclose on any employment application the fact or details of any conviction history, any unresolved arrest, or any matter identified in subsections (a)(1)-(6). Nor shall the Employer inquire on any employment application about the fact or details of any conviction history, any unresolved arrest, or any matter identified in subsections (a)(1)-(6).
This San Francisco law limits employers in San Francisco from inquiring into or seeking a job applicant’s criminal history unless and until a conditional offer of employment has been made to that individual. (See Article for further details).
Similarly, AB 1088 which repealed the Labor Code section 432.9 prohibits employers for asking about any arrest, conviction or criminal history on applications; employers must first present a conditional offer of employment. AB 1008 went further and required the following:
- An employer must make an individualized assessment whether a particular conviction has a direct and adverse relationship to the specific duties of the job that justify denying the applicant the position;
- If an employer makes a preliminary decision that the applicant’s conviction history disqualifies the applicant from employment, the employer must notify the applicant of the decision in writing, and provide the applicant at least five business days to respond to dispute the accuracy of the conviction information;
- The employer must then consider the applicant response before making a final decision
How Your Ministry Can Make AB 1008 Work for You
What is different about AB 1008 is that it amends the Fair Employment and Housing Act (FEHA). As you may know, religious entities are specifically exempted from (FEHA), or most of it. (i.e. employers with more than 50 employees are not exempted from sexual harassment training.)
So one could surmise AB1008 doesn’t apply to churches and faith-based organizations because it is part of FEHA. Our interpretation leans that way as well, but simple hiring practices make it easy to stay compliant. Do background checks on all your employees after the conditional offer of employment. If something comes up that you think would be contrary to your religious purpose or affect the church’s mission in any way, you can deny employment based upon the background results and your religious purpose (many ministries are already doing this). Nothing prevents you from asking applicants it they would be willing to submit to a background check on the application. We suggest not even participating in the rebuttal and re-consideration process that AB 1008 requires. Following laws that you are not subject to can jeopardize your religious exemption. Churches and faith-based organizations do not want to do anything to jeopardize their religious entity status.
To ensure that you do not jeopardize your religious entity status, please pay attention to the following:
- Your employee handbook, offer letter templates, teacher contract templates, parent/student handbook, and any standalone policies and related acknowledgment forms; they should contain a clear explanation of the religious entity exemption, and a declaration of intent to preserve, and not waive, the religious entity’s rights and protections, while still preserving the commitment to an environment free of harassment, discrimination and retaliation.
- Your Equal Opportunity Employment Statement should be amended to state you are exempt from FEHA and other areas that are sole to your religious purpose.
- If you offer “AB 1825” anti-harassment training, be sure your trainer knows that the entity is a non-profit religious corporation and that the materials contain appropriate disclaimers and disclosures. If your organization’s usual trainer doesn’t understand why that is important, look for one who does.
- Consider modifying or supplementing the FEHA portions of the standard “all in one” breakroom employment notices so employees are aware of your religious entity exemption.
- Check to make sure there aren’t city ordinances you must comply with even though you’re exempt from certain state and federal laws.
Have questions about AB 1008? We’re here to serve. Just drop us a line and we’ll reach out to help.
Has your ministry hired someone and dealt with the “Ban the Box” requirement? How did affect your hiring process?
We’re always ready to have a conversation on California’s assembly bills and how the affect ministry.
This article co-authored courtesy Leslie DeMattia, DeMattia Consulting.