I live in California, and I have been told that I can no longer check criminal records when hiring. Is this true?

No. California is one of 13 “Ban the Box” states.  These states have enacted legislation that is designed to prevent people from being unreasonably denied employment because of a criminal record.  Since about one in four US adults have criminal records, re-entry of these people into the workforce is viewed as an important part of their reintegration into society. The inability for people with criminal records to find legitimate work is often cited as a huge factor in recidivism.

The Ban the Box states have enacted rules that require employers to postpone performing criminal records checks, or asking questions like “do you have a criminal record” until after a conditional offer of employment has been extended. If an applicant has been offered employment, and the offer is subsequently withdrawn when a criminal record has been discovered, this places a fairly strong onus on the employer to justify the withdrawal, and the relevance of the criminal record to the job.

In other words, the employer has to be prepared to answer how a criminal record made an otherwise fully qualified applicant (as evidenced by the job offer) unsuitable for the job. By isolating this one factor, the laws seek to prevent peremptory discrimination against those with criminal records, and to stop employers from using some other justification for denying employment to those with criminal records.

Most states with Ban the Box legislation carve out a specific exemption for jobs that work with vulnerable populations such as children and the elderly. Since most dental practices do deal with these vulnerable cohorts, Ban the Box legislation will probably not end up forcing dental practices to hire people that they otherwise would not; instead it provides more of a procedural hurdle, forcing a certain sequencing in the hiring process and necessitating a review of documents like application forms.

And Ban the Box legislation reinforces a concept that we have long espoused. Whether you are in a Ban the Box state or not, the mere existence of a criminal record should not always prevent you from hiring someone. If someone does have a criminal record, you need to look at various factors. For example, was it a one-time transgression, or is there a pattern of criminality? Was the offense recent or a long time ago? Was it for possession of marijuana (which is now legal in many states) or check fraud? The answers to these questions will give insight into whether someone poses a risk to your practice.

So for most dentists, Ban the Box legislation does not threaten them in any way with the possibility of hiring someone who is a danger. What this legislation does is force employers, including you, to look more closely at criminal records before making a decision.