In 2018, California enacted the Fair Chance Act (“FCA”), also known as the “ban-the-box” law, which added the FCA to California’s employment anti-discrimination statute, the Fair Employment and Housing Act (“FEHA”), which is enforced by the Civil Rights Department (“CRD”).
Background
The FCA generally prohibits employers from asking questions about, or even considering, a job applicant’s conviction history during the job application process and before a conditional job offer has been made. It also generally prohibits employers from asking about, or considering, (1) information regarding a job applicant’s arrest that was not followed by a conviction, (2) their participation in a pretrial or post-trial diversion program that has been completed, nor its underlying charge, or (3) any convictions that have been sealed or otherwise eradicated.
After a conditional job offer has been extended, an employer may ask about the job applicant’s conviction history and/or conduct a background check, but remains prohibited from asking or considering information having to do with aforementioned items (1) – (3).
If after making a conditional job offer, the employer learns about the job applicant’s conviction history, the employer is free to take back the conditional job offer, so long as the employer first conducts an Individualized Assessment, after which the employer is able to show that the conviction history has a “direct and adverse” relationship with the specific duties of the job.
The Individualized Assessment requires employers to consider:
- the nature and gravity of the offense or conduct,
- the time that has passed since the offense or conduct and/or completion of the sentence, and
- the nature of the position held or sought.
The FCA allows job applicants to challenge an employer’s attempt to take back a conditional job offer by disputing the conviction history report upon which the employer is relying, and providing additional evidence challenging the report.
NEW! Changes Effective October 1, 2023
In the CRD’s changes to its “ban-the-box” regulations, we now have more clarity with respect to the following.
Protected Individuals
The FCA now protects both job applicants and employees who (1) have applied or indicated a specific desire to be considered for a different position with their current employer and (2) are subjected to a review and consideration of criminal history because of a change in ownership, management, policy, or practice.
Covered Employers
In addition to labor contractors and client employers, the FCA now applies to (1) joint employers, (2) entities that evaluate an applicant’s criminal history on an employer’s behalf or as the employer’s agent, (3) staffing agencies, and (4) entities that procure workers from pools or availability lists.
Job Postings
Employers are now specifically prohibited from including statements in job advertisements, postings, applications, or other materials that no persons with criminal history will be considered for hire (e.g., “No Felons” or “Must Have Clean Record”). If an employer violates this prohibition by asking about criminal history, and the job applicant fails to disclose their criminal history, the employer may not use the applicant’s failure to disclose criminal history to deny a job offer.
The Initial Individualized Assessment
Employers now have a list of considerations they may take into account while conducting the Individualized Assessment.
When considering the nature and gravity of the offense, employers may consider:
- The specific personal conduct of the applicant that resulted in the conviction;
- Whether the harm was to property or people;
- The degree of the harm (e.g., amount of loss in theft);
- The permanence of the harm;
- The context in which the offense occurred;
- Whether a disability, including but not limited to a past drug addiction or mental impairment, contributed to the offense or conduct, and if so, whether the likelihood of harm arising from similar conduct could be sufficiently mitigated or eliminated by a reasonable accommodation, or whether the disability has been mitigated or eliminated by treatment or otherwise;
- Whether trauma, domestic or dating violence, sexual assault, stalking, human trafficking, duress, or other similar factors contributed to the offense or conduct; and/or
- The age of the applicant when the conduct occurred.
When considering the time that has passed, employers may consider:
- The amount of time that has passed since the conduct underlying the conviction, which may significantly predate the conviction itself; and/or
- When the conviction led to incarceration, the amount of time that has passed since the applicant’s release from incarceration.
When considering the nature of the position, employers may consider:
- The specific duties of the job;
- Whether the context in which the conviction occurred is likely to arise in the workplace; and/or
- Whether the type or degree of harm that resulted from the conviction is likely to occur in the workplace.
Applicant/Employee’s Time to Respond to Employer’s Notice of Preliminary Decision
Applicants/Employees now have 5 business days from the date of receipt of the Employer’s Notice of Preliminary Decision disqualifying applicant from the employment conditionally offered. If Employer sends Notice by mail without tracking, the Notice is deemed received 5 calendar days after the notice is deposited for delivery for California addresses.
- For addresses outside of California, it is 10 calendar days after.
- For addresses outside of the U.S., it is 20 calendar days after.
Applicant/Employee’s Response to Employer’s Notice of Preliminary Decision
Applicants/Employees now have examples of the types of information they may submit in response to a Notice of Preliminary Decision. Information may include Applicant/Employee’s:
- Employment history
- Participation work and educational or rehabilitative programming
- Community service involvement
Conclusion
These changes place new obstacles for employers when using criminal history information in the hiring and promotion processes. Employers must be sure to review these changes to the FCA and implement them accordingly.
As a brief overview, here is what the hiring process must look like according to the FCA, effective October 1, 2023.
1. Employee responds to Employer’s Job Posting
- See here for the CRD’s recommended voluntary statement that employers can choose to add to job advertisements and applications regarding the Fair Chance Act.
2. Employer Extends Conditional Job Offer
- See here for the CRD’s sample letter that can be used by an employer to make a conditional job offer. (For Spanish version, see here.)
3. Employer conducts a criminal background check.
4. Employer conducts an individualized assessment of the applicant’s criminal history.
- See here for the CRD’s sample form that can be used by an employer to conduct the individualized assessment of an applicant’s criminal history. (For Spanish version, see here.)
5. Employer gives applicant notice of preliminary decision to rescind conditional job offer.
- See here for the CRD’s sample letter that can be used by an employer to meet its obligation to provide notice to the applicant. (For Spanish version, see here.)
6. Employee has opportunity to respond to employer’s notice.
7. Employer reassesses the applicant.
- See here for the CRD’s sample form that can be used by an employer to conduct an individualized re-assessment based on information provided by the applicant. (For Spanish version, see here.)
