The California Fair Chance Act went into effect in 2018. The goal of this law is to allow applicants with prior criminal convictions to be evaluated first based on their qualifications and skills rather than their criminal histories.
Many know the main provision of this law as ‘Ban The Box.’ Ban the Box laws prohibit an employer from asking about someone’s criminal history too early in the hiring process. This means waiting to conduct the criminal background check until after the employer makes a contingent offer. The employer cannot ask for the information on an initial application for employment or search the internet for that information until after the contingent offer is made.
The California Civil Rights Department has issued modifications to the Fair Chance Act regulations which will become effective October 1, 2023. These new regulations do not fundamentally change the law but they do add some additional requirements and clarification when an employer relies on an applicant’s criminal background history to make employment decisions.
Some important updates included in the new regulations are:
- The new guidelines make it clear that employers are not allowed to include statements such as “No Felons” or “Must have a clean record” in their job postings, applications or other materials which could make it appear as if someone with a criminal history will not be considered for employment.
- Even if an applicant voluntarily discloses an issue on their criminal history during the interview process, the employer cannot consider that information until after they have made a contingent offer of employment.
- The new regulations apply not just to new applicants but to any existing employees who are applying for a new position with their current employer or who may be subjected to a criminal history background check due to a change in ownership, management, or company policy.
If an employer relies on criminal history reports to assist with hiring or promotion decisions, they should follow the following steps to ensure they are compliant with the current Fair Chance Act and the new regulations going into effect on October 1, 2023.
- After receiving the person’s criminal history report containing any convictions, the employer must make an individualized assessment of whether the conviction would have a direct adverse effect relating to the specific duties of the position. This individualized assessment must be a “reasoned, evidence-based determination.”
- According to current law, this assessment must include: 1) the nature and gravity of the offense, 2) the time that has passed since the offense was committed and/or the completion of the sentence, 3) the nature of the job the applicant is being considered for.
- The new guidelines include additional factors to consider when looking at the nature and gravity of the offense. These factors include: a) whether the offense was against people or property, b) the degree of the harm, c) whether a disability, including past drug addiction or mental impairment contributed to the offense and if so, could harm arise in the future from similar conduct, d) whether trauma, domestic violence, sexual assault, human trafficking or similar factors contributed to the offense and e) the age of the applicant when they committed the offense.
- If the employer decides to preliminarily withdraw the offer after the individualized assessment, they must notify the person in writing and allow them to respond to the notice with evidence challenging the accuracy of the criminal history report the employer relied on to make their decision. The person can also present evidence of rehabilitation or any mitigating circumstances the employer should consider.
- The employer is required to consider any evidence the person provides and cannot require them to provide any specific type of documents or evidence. When considering the evidence provided, the employer should keep in mind several factors before making a final decision on withdrawing the offer such as the person’s employment history and any community service since the conviction or completion of the sentence.
- As mentioned above, the employer should take into account such things as domestic violence, sexual assault, human trafficking, etc. however, the employer cannot require the person to provide information on their status as a survivor of these situations. The person may provide this information voluntarily as part of their evidence.
- If the employer makes the final decision to withdraw the offer after reviewing the evidence provided by the person, they must notify them in writing of this decision.
The new guidelines add some additional steps an employer must take, including an expanded list of information to consider when making the individualized assessment and the requirement to put the preliminary and final withdrawal of an offer in writing. Contact SDHR Consulting and our HR Consultants can help you navigate this, so you can easily comply with these new requirements.
About the Author
Traci Hagan, MHRM
Traci is an HR Consultant who has been with SDHRC for over 5 years but has over 35 years of experience in employee relations, conflict resolution benefits administration, training and development, workers’ comp, and staffing. Traci’s experiences encompass multi-organizational and cross-cultural issues which allow her to expertly charter the waters of complex problems and where she thrives by discovering and providing solutions for smoother sailing.