Reminder about New Requirements for California Employers When Considering Criminal History in Employment Decisions
What is this about:
The California Fair Chance Act requires employers to make a conditional offer of employment before considering an applicant’s criminal history. On October 1, 2023, new regulations by the California Civil Rights Department went into effect regarding how employers can use information about an applicant’s criminal history to rescind a conditional offer.
Effective date:
October 1, 2023
What this means:
Before a conditional offer can be rescinded, a California employer must perform an individualized assessment as to whether the applicant’s criminal history “has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.” (California Code of Regulations Section 11017.1(c)(1)).
The specific requirements for the individualized assessment must include, at a minimum, consideration of the following factors: • the nature and gravity of the offense or conduct;
• the time that has passed since the offense or conduct occurred or the completion of the sentence;
• the nature of the job held or sought.
If, after the individualized assessment, the employer makes a preliminary decision to revoke the conditional offer, the employer must notify the applicant in writing of the preliminary decision. The notice (which can be part of the pre-adverse action notice) must include all the following information:
• the conviction(s) that were the basis for the preliminary decision;
• a copy of the information relied on for the decision;
• statement that the applicant or their representative has the right (but is not required) to respond before the decision becomes final, including challenging the information’s accuracy and submitting evidence of rehabilitation or mitigating circumstances;
• the deadline to respond (no less than five business days after receipt of the notice, and email notice is considered received two business days after it is sent).
If the applicant timely notifies the employer in writing that additional time is needed to respond, the applicant must be given at least five additional business days to respond to the notice before the employer’s preliminary decision becomes final.
The new regulations also expressly prohibit employers from (1) mandating that the applicant respond to the notice or provide information or (2) refusing to consider any information provided by the applicant. The employer must notify the applicant in writing of any final decision to rescind the offer and include information regarding available procedures to challenge the decision and the right to contest the decision by filing a complaint with the California Civil Rights Department.
Why this matters:
Violations of the new regulations can result in damages for failure to consider the new criminal evaluation factors, including back pay, front pay, and hiring or reinstatement.
What else still matters:
City of Los Angeles Fair Chance Initiative for Hiring Ordinance (FCIHO)
• The FCIHO applies broadly to businesses in the city that employ at least 10 people, with certain exceptions.
• Employers may not ask about an applicant’s record until a conditional offer of employment has been extended.
• After learning of an applicant’s record, employers must perform an individualized assessment and consider factors including (i) the age of the offense, (ii) the nature of the offense, and (iii) specific duties of the job sought. Written notice must be provided to applicants.
• The ordinance provides aggrieved job applicants a private right of action.
City & County of San Francisco Fair Chance Ordinance (FCO)
• The FCO applies to employers with 5 or more employees worldwide and all City contractors, subcontractors, and leaseholders.
• Employers may not conduct a background check or ask about criminal records until after making a conditional offer of employment.
• After learning of an applicant’s record, an employer shall conduct an individualized assessment, considering only (i) directly related convictions, (ii) the time that has elapsed since the conviction or unresolved arrest, and (iii) any evidence of inaccuracy or evidence of rehabilitation or other mitigating factors.
• The employer must provide the applicant with a copy of the FCO Notice and background check report. The applicant has seven days to respond for the purpose of correcting the record, providing evidence of rehabilitation, or any other mitigating factors.
• Applicants may bring a civil action against the employer or other person violating this FCO.
Best practices:
California state law, the FCIHO, and FCO all require employers to make a conditional offer of employment before considering an applicant’s criminal history. As a best practice, employers should consider using a two-step process when obtaining a background check report. The first step involves obtaining all non-criminal checks, such as a review of the applicant’s employment and educational history. The second step involves obtaining the applicant’s criminal record history after a conditional offer of employment is made.
Several other cities and Hawaii have enacted “ban-the-box” or “fair chance laws” that require a conditional offer of employment be made to applicants before a criminal background check can be made.
How SI can help:
Experienced in preparing background check reports using a two-step process, SI makes the process seamless. We can also provide sample adverse action notices and other guidance.
Disclaimer: This communication is for general informational purposes only and does not constitute legal advice. No recipient should act or refrain from acting based on any information provided here without advice from a qualified attorney licensed in the applicable jurisdiction.
