State Regulator Announces Increased California Fair Chance Act Enforcement

“Fair Chance” -type laws are becoming more common across the country. These types of laws often restrict the types of criminal information employers can consider during the hiring process, or when certain criminal information can be considered. With the increasing adoption of “Fair Chance”-style laws, it’s sometimes unclear how, or if, agencies will enforce these types of laws. But one agency in California is stepping up their enforcement.

Proactive Measures to Enforce California’s Fair Chance Act

On October 20, 2021, the California Department of Fair Employment and Housing (DFEH) announced a new effort to identify and correct violations of the California Fair Chance Act (FCA).

The DFEH plans to use technology to conduct mass searches of online job advertisements for statements that violated the FCA. The department states that, “Blanket statements in job advertisements indicating that an employer will not consider anyone with a criminal history, such as “No Felons” or “Must Have Clean Record,” violate the Fair Chance Act’s requirement that employers consider an applicant’s criminal history on an individual basis, as well as any mitigating information provided by the applicant.”

In one day alone, they found over 500 problematic job postings. Those included “unlawful statements that the employer will not consider any job applicant with a criminal record.”  The DFEH is documenting the violations. Employers involved with the listings will also receive notice to remove unlawful statements.

DFEH’s steps show that state regulators are willing to enforce these types of laws.

But the state isn’t just about punishing violators. In an effort to help educate employers on the FCA, they created a Fair Chance Toolkit for guidance.

Understanding the Law in California to Avoid Violations

Without a clear understanding of the employment laws, you could be putting yourself at risk of a potential violation. For employers that hire in California, that means staying compliant with the FCA (Cal. Gov. Code § 12952). This law generally makes it an unlawful employment practice for companies that employ five or more people, with some exceptions, to:

• Ask questions about or consider an applicant’s conviction history before a conditional offer. This also entails including questions on an employment application that seek the disclosure of an applicant’s conviction history.
• Consider, distribute, or disseminate any of the following while conducting a conviction history background check in connection with an application for employment:
  • Arrests not followed by conviction, except when allowed by state law
  • Referral to or participation in a pretrial or posttrial diversion program
  • Convictions that have been sealed, dismissed, expunged or statutorily eradicated
  • Any conviction for which the convicted person has received a full pardon or has been issued a certificate of rehabilitation

In addition to these restrictions, certain employers in California have more to consider if they intend to deny an applicant employment based solely, or in part based on the applicant’s conviction history. This includes:

1. Conducting an individualized assessment of whether the conviction history has a direct and adverse relationship with the specific duties of the job that justifies denying employment to the applicant. The assessment must consider:

• The nature and gravity of the offense or conduct
• The time that has passed since the offense or conduct and completion of the sentence
• The nature of the job

2. Employers that make a preliminary decision to take adverse action after the assessment must send the applicant a notice of the preliminary decision in writing. The notice must contain:

• What conviction(s) are the basis for the preliminary decision
• A copy of the conviction history report
• An explanation of the applicant’s right to respond before the employer’s preliminary decision becomes final. This explanation must detail the deadline for the applicant to respond and inform the applicant that the response can include submission of evidence challenging the accuracy of the conviction history, evidence of rehabilitation or mitigating circumstances, or both

3. Employers must allow the applicant at least five days to respond before making their final decision. If during this initial waiting period the applicant notifies the employer, in writing, that they are disputing the accuracy of the conviction history, and that the applicant is trying to obtain evidence supporting their dispute, the employer must give the applicant five additional days to respond to the notice. The employer must consider information provided by the applicant before making a final decision.

4. If, after considering evidence from the applicant, the employer makes a final decision to deny an applicant based solely or in part on their conviction history, the employer must notify the applicant in writing:

• • Their final denial, which may include justification of their decision
  • Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration
  • The right to file a complaint to DFEH

Employers may want to review their current job postings with their legal team to make sure they remain in compliance with the changing laws.