The landscape of employment laws and regulations, especially about criminal history inquiries, has seen significant shifts in recent times. California’s Fair Chance Act stands as a prominent example, aiming to provide individuals with criminal records a fair opportunity for employment. Effective October 1, 2023, the Act underwent revisions that expand its scope and impact on both employers and applicants. Let’s delve into the key aspects of these changes and how they affect the hiring process.
The amendments to the Fair Chance Act widened the definitions of “employer” and “applicant,” now encompassing not just direct employers but also entities involved in evaluating an applicant’s conviction history or acting as an agent of the employer. This includes staffing agencies and entities handling worker selection. The definition of an applicant now encompasses background checks conducted during changes in ownership, management, or policies within an organization.
Prohibitions and Requirements:
One of the core tenets of the Act is the prohibition against inquiries regarding an applicant’s criminal history until after a conditional offer of employment has been made. However, even if an applicant voluntarily discloses this information before the conditional offer, the employer is prohibited from considering it. Employers are also barred from advertising or stating in recruitment materials they won’t consider applicants with criminal histories.
The revisions clarify that employers cannot seek or receive criminal history information through internet searches (even if such searches are directed at discovering criminal history) before making a conditional offer of employment.
If an applicant voluntarily reveals a criminal history before receiving a conditional job offer, the employer cannot use that information in its employment decision.
Employers cannot include statements in job advertisements, postings, applications, or other materials that people with criminal histories will not be considered for hire, such as “No Felons” or “Must Have Clean Record”.
Employers cannot use an applicant’s failure to reveal criminal history before the conditional offer as a factor in its hiring decision.
Initial Individualized Assessment:
The revised regulations mandate employers to conduct an Initial Individualized Assessment before deciding based on an applicant’s criminal history. This assessment involves considering various factors, such as the nature and gravity of the offense, the time that has passed since the offense, the specific job role, and evidence of rehabilitation or mitigating circumstances. An employer cannot rescind a conditional offer of employment without conducting the individualized assessment. Although not required to be in writing, documented proof of the assessment will be useful in evaluating the matter.
Guidance and Consideration: The new regulations provide detailed guidance on sub-factors that employers must consider. Employers mustn’t mandate specific types of documentary evidence or disqualify applicants for failing to provide such documents. The focus remains on a fair and comprehensive evaluation of an individual’s suitability for a particular role.
The employer should consider:
- The conduct that resulted in the conviction;
- Whether there was harm to property or people;
- The degree of the harm (i.e., amount of loss);
- The permanence of the harm;
- The context in which the offense occurred;
- Whether a disability, including drug addiction or mental impairment, contributed to the offense or conduct, and whether a reasonable accommodation could have mitigated or eliminated the conduct. Employers can consider whether the disability has been mitigated or eliminated;
- Whether trauma, domestic or dating violence, sexual assault, stalking, human trafficking, duress, or other similar factors contributed to the offense or conduct;
- The age of the applicant when the conduct occurred.
Timing Requirements and Notifications:
The timing requirements outlined in the revisions are critical. Employers must provide a pre-adverse action notice, allowing applicants at least 5 business days to respond. Specific guidelines exist for various notification methods, ensuring reasonable time for applicants to contest any inaccuracies or provide more evidence supporting their case.
The changes to California’s Fair Chance Act mark a significant step towards fairer employment practices, emphasizing a nuanced evaluation of an applicant’s criminal history while ensuring their rights are protected. Employers must adhere to these updated regulations to create an equitable hiring environment, while applicants benefit from increased transparency and opportunities for fair consideration.
Navigating these revised regulations requires meticulous attention to detail and adherence to the stipulated timelines. By understanding and complying with these changes, both employers and applicants contribute to fostering a more inclusive and just employment landscape in California.
If you have questions about California’s Ban-The-Box laws, or how companies can use lawfully obtained information to make employment decisions, contact the Nuddleman Law Firm. Robert Nuddleman has been representing employers and employees for over 25 years. His commonsense approach helps employers follow the law, and helps employees understand how the law protects them.