California’s background screening regulations are unique and require vigilance in order to remain compliant. Changes to the California Fair Chance Act regulations went into effect October 1, 2023 and are summarized below. This informative blog is meant to be used as a guide to background screening. You must consult with an employment attorney to ensure your processes are compliant.
What is the California Fair Chance Act?
The California Fair Chance Act originated in 2018 with the purpose of giving all individuals an equal opportunity for all job postings. Employers may not include in job descriptions or postings any verbiage to the effect that it will not hire applicants with criminal history. The Act prohibits employers from asking or conducting background screening until a conditional offer has been made. Even if the criminal history is voluntarily foreclosed, the employer may not use that information until a conditional offer is made. Once a conditional offer is made, and background screening is performed, if the employer chooses not to hire due to criminal history, an individual assessment must be conducted. If the employer still chooses not to hire the applicant, the Adverse Action process must be followed.
Notable Definitions within the Act
Employer: any agent, staffing agency, or employer conducting and evaluating an applicant’s criminal history.
Employee: applicants and current employees. This includes background screening for a change in policies, management, or ownership.
Directly related standard: employers must only consider criminal records that are directly related or have a specific bearing on the job duties.
Business Necessity: employers must be able to demonstrate screening for criminal history is necessary for business and cannot include vague policies that could impact applicants with criminal records.
Individual Assessment
As mentioned above, if an employer choses not to hire an applicant based on criminal history, an individual assessment must be conducted. Factors that must be considered include: the nature/gravity of offense, the time that has passed since the offense, the nature of the job, as well as considering evidence of rehabilitation.
Adverse Action
Adverse Action includes any decision that is unfavorable toward an applicant, employee, consumer, or volunteer that is based all or in part on the results of a background screen. This can include but is not limited to denial of employment, promotion, transfer or raise. Employers must provide written notice if the criminal record was a factor in taking adverse action. This gives the applicant an opportunity to provide additional information or respond with inaccuracies, or proof of rehabilitation.
The California Fair Chance Act requires adherence to certain procedures when action is taken including a defined waiting period of at least five business days after sending the pre-adverse action letter and making a final decision.
Click here for more information on Adverse Action, pre and post letters, and adverse action letter services provided by Choice Screening.
Please visit the California Civil Rights Department website for more information on The Fair Chance Act as well as guides, and sample forms.
Contact your account advisor for more information on our adverse action services or for more information regarding the California Fair Chance Act.
This blog is intended to be informative and not all-inclusive. You must consult with an employment attorney to ensure your processes are compliant with all federal and local regulations.
