On October 20, 2021, the California Department of Fair Employment and Housing (DFEH) announced a new effort to identify and correct violations of California’s Fair Chance Act in employer job postings and recruitment materials. The Fair Chance Act, also known as the “Ban-the-Box” law, generally prohibits employers with five or more employees from requesting or considering an applicant’s criminal history prior to making an offer of employment to the applicant. Once an employment offer is made, an employer may seek an applicant’s criminal history, but the employer still must perform an individualized assessment of any criminal history for that applicant before withdrawing the offer.
The DFEH found more than 500 violations of the Fair Chance Act in employer online job postings in just a single day. Many violations involved job posting or recruitment materials that stated the employer wouldn’t consider anyone with a criminal record. Such a blanket statement violates the Fair Chance Act because it demonstrates that an employer will not perform the individualized assessment required under the law. The DFEH documented these violations and sent notices to the employers to remove the statements.
With the DFEH becoming more aggressive in enforcing the Fair Chance Act, employers must familiarize themselves with the act’s requirements. First, employers cannot seek an applicant’s criminal history before making a conditional offer of employment. This means that an employer cannot:
- Include on a job application any question that seeks the disclosure of the applicant’s conviction history at any time before a conditional offer of employment has been made.
- Inquire into or consider the conviction history of an applicant before a conditional offer of employment has been made.
Next, once the conditional offer has been made, an employer may seek an applicant’s criminal history. Some types of criminal history cannot be considered, however, even after a conditional offer is made. These are:
- An arrest not followed by a conviction, except when the applicant is out on bail or his/her own recognizance pending trial, and except for jobs at specified health facilities;
- A referral to or participation in a pre-trial or post-trial diversion program (a criminal diversion program is a work or education program as part of probation); and
- A conviction that has been sealed, dismissed, expunged or statutorily eradicated pursuant to law. (Exceptions exist where certain employers of more sensitive jobs legally must consider specific convictions to be grounds for dismissal from the application process.)
Finally, if an applicant’s background check returns with a criminal history that an employer may consider, an employer must follow certain steps prior to revoking the conditional offer of employment. The employer must first conduct an individualized assessment of the applicant’s criminal history and its relationship to the specific job duties the applicant will perform. An individualized assessment considers the following:
- The nature and gravity of the offense or conduct;
- The time that has passed since the offense or conduct and completion of the sentence; and
- The nature of the job held or sought.
If, after conducting the individualized assessment, the employer still wishes to revoke the conditional employment offer, the employer must follow a written notice procedure. The written notice to the applicant must contain all of the following:
- The identity of the disqualifying conviction(s) that are the basis for the preliminary decision to rescind the conditional job offer (you have the option, but are not required, to provide an explanation for your preliminary decision);
- A copy of the conviction history report, if any;
- An explanation of the applicant’s right to respond to the notice before a final decision is made;
- The deadline for the applicant’s response (must provide at least five business days); and
- An explanation informing the applicant that the response can include evidence challenging the accuracy of the conviction history report and/or evidence of rehabilitation or mitigating circumstances.
The applicant must be provided five business days to respond and provide any mitigating evidence, if any. After the applicant has been afforded adequate time to respond, and the employer still wishes to revoke the offer, the employer must provide a final written notice that includes:
- The final denial or disqualification. You may provide an explanation for your final decision, but it is not required.
- Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration.
- The applicant’s right to file a complaint with the DFEH.
The Fair Chance Act creates a very strict procedure to follow for seeking an applicant’s criminal history and disqualifying an applicant from employment based upon that history. With the DFEH’s renewed enforcement posture, employers should immediately review their recruitment efforts to ensure compliance with the Fair Chance Act.
Matthew J. Roberts, Employment Law Counsel/Subject Matter Expert
CalChamber members can read more about Restrictions on Obtaining Criminal History in the HR Library. Not a member? See what CalChamber can do for you.
