Introduction:
In a constant effort to strike a balance between protecting employee rights and ensuring workplace safety, California has recently implemented new regulations that significantly impact how employers conduct background checks on their workforce. These changes, designed to enhance transparency and fairness, come with challenges for employers seeking to maintain a compliant and secure work environment.
Understanding the Fair Chance Act. (FCA):
One of the key developments in the realm of employee background checks is the recent updates to the Fair Chance Act contained in the California Code of Regulations Section 11017.1. The Fair Chance Act regulates how employers can ask for and use criminal records in the hiring process. Recent changes expand definitions on whom the law applies, statements in job ads and employment application documents, and specific sub-factors that employers must consider as part of an individual assessment.
Key Highlights of the New Regulations:
- What employers are subject to this law:
Generally, to public and private employers in California with five or more employees.
- Advertisement and Application language:
Employers can choose to include the below voluntary statement in advertisements and applications:
[Employer] will consider qualified applicants with a criminal history pursuant to the California Fair Chance Act. You do not need to disclose your criminal history or participate in a background check until a conditional job offer is made to you. After making a conditional offer and running a background check, if [Employer] is concerned about a conviction that is directly related to the job, you will be given the chance to explain the circumstances surrounding the conviction, provide mitigating evidence, or challenge the accuracy of the background report. Find out more about the Fair Chance Act by visiting calcivilrights.ca.gov/fair-chance-act/.
- Individualized Assessment of Criminal Convictions:
The new regulations emphasize the importance of an individualized assessment when considering an applicant’s criminal history. Blanket policies that automatically disqualify individuals with criminal convictions may be deemed discriminatory. Employers are now required to assess the nature and gravity of the offense, the time that has passed since the conviction, and its relevance to the job.
The new regulations provide a list of sub-factors that employers must consider at a minimum as part of the individualized assessment, including:
- Whether the harm was to property or people.
- The degree of the harm (e.g., amount of loss in theft).
- The permanence of the harm.
- The context in which the offense occurred.
- Whether a disability contributed to the offense or conduct.
- 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.
- The amount of time that has passed since the conduct underlying the conviction, which may significantly predate the conviction itself.
- The amount of time that has passed since the applicant’s release from incarceration.
- The specific duties of the job, including whether the context in which the conviction occurred is likely to arise in the workplace.
4. Timing of Background Checks:
Employers may not enquire about a candidate’s criminal record, nor use criminal conviction history voluntarily provided by the candidate. Criminal records checks may not be conducted nor relied upon until after a conditional job offer has been made.
5. Adverse Action Process:
If an employer decides to take adverse action based on information obtained from a background check, they must follow a specific process.
Implications for Employers:
These new regulations pose for employers in California. Employers should invest time and resources in updating their policies, training hiring personnel, and implementing technology solutions that facilitate compliance with the new regulations.
https://calcivilrights.ca.gov/fair-chance-act/
link to CA Civil Rights Department, Fair Chance Act Guidance page
Fair Chance Act Sample Forms
https://calcivilrights.ca.gov/wp-content/uploads/sites/32/2022/11/Fair-Chance-Act-FAQ_ENG.pdf
link to FAQ on Fair Chance Act: Criminal History and Employment