Last Updated on September 11, 2023

For years, California employers have been adhering to the State of California Civil Rights Department’s Fair Chance Act, which governs how and when they can use a job applicant’s criminal history in the employment process. Recently, significant amendments have been made to the regulations, with the Office of Administrative Law sanctioning the modifications proposed by the California Civil Rights Council on July 24, 2023. These changes will go into effect October 1, 2023.

Upcoming Changes to the Fair Chance Act:

Defining Applicant

The term “applicant” has been extended to include current employees under consideration for promotion, training, discipline, lay-off, or termination, due to changes such as ownership, management shift, or alterations in company policy.

Expanded Definition of “Employer”

The definition of “employer” has broadened to include entities acting on behalf of the employer in evaluating an applicant’s criminal history, potentially affecting actions by consumer reporting agencies.

Job Advertisements

Job postings or advertisements cannot indicate that individuals with a criminal history will not be considered for the position.

Volunteered Information

If a candidate shares details of their criminal history voluntarily before a conditional job offer is made, employers can only consider this information after deciding on the conditional employment offer.

Background Check Exemptions

The ongoing exemptions for compulsory background checks have been clarified, emphasizing that it only applies when the employer is mandated by any state, federal or local law to conduct these checks. The exemption does not cover an employer if a state, federal or local law requires a third party such as an occupational licensing board to conduct the background check.

Individualized Assessments

Employers are mandated to perform individualized assessments considering various aspects of the applicant’s criminal history prior to issuing the notice of preliminary decision. This shift indicates that employers may need to actively seek relevant information for the job-related assessment early in the process, possibly through direct communication with the applicant.

The updated regulations supply employers with detailed examples to aid in this analysis, focusing on the nature of the offense, the time elapsed since the offense, and the specific requirements of the job in question. It introduces considerations such as the role of trauma or disability in the offense, aiming to provide a more nuanced approach to evaluating an applicant’s history.

Applicants can provide mitigating evidence to explain their criminal history, including documentary proof. Employers are required to consider any mitigating circumstances, such as past addiction or mental health issues, presented during the assessment process. However, employers are prohibited from forcing individuals to disclose their status as survivors of various forms of violence or to reveal any disabilities. Additionally, they cannot reject any information that the applicant or employee willingly presents.

Response Time for Applicants

The preliminary decision notice under the Fair Chance Act must:

• Identify the criminal history that is potentially disqualifying
• Include a copy of the investigative report and any supporting documentation relating to the conviction history
• Notice of right to respond prior to the employer making a final decision

Applicants have at least 5 days from the receipt of the preliminary decision notice. If the letter is sent in a manner that does not confirm receipt, “receipt” is defined as:

• 5 calendar days if mailed from within California
• 10 calendar days if mailed outside of California
• 20 calendar days if mailed outside of the US
• 2 business days if emailed

Reassessment Process

If an applicant responds with rehabilitative or mitigating evidence to the preliminary decision notice, employers must undertake a reassessment, considering additional factors introduced in the new regulations.

Final Decision Letter

Employers are still required to notify individuals of their right to contest the final decision by filing a complaint with the Civil Rights Department.

Next Steps for Employers To Address Changes to Fair Chance Act

Given these substantial updates to the Fair Chance Act, employers should revisit their background screening processes to ensure compliance with the modified regulations. It would be prudent to seek guidance from experienced counsel for a review of current practices. Furthermore, employers must remain alert to the evolving legislative landscape across various jurisdictions and remain compliant to avoid litigation in a scenario of heightened sensitivity around FCRA violations.

Contact MyHRScreens For Your Screening Needs

Contact MyHRScreens today for all your employee screening needs. You can contact us at klewis@myhrscreens.com, 866-899-8970 xt 118 or schedule an appointment convenient for you below.

Contact MyHRConcierge for your human resource support needs. Contact us at ccooley@myhrconcierge.com, 855-538-6947 xt 108 or schedule an appointment convenient for your below.

Note: This article does not provide legal advice. Please contact your attorney for legal advice on the Fair Chance Act.