This article provides and overview of the California Fair Chance Act (“CFCA” or “Act”) and highlights key considerations from the recent release of the Department of Fair Employment and Housing’s (“DFEH”) Frequently Asked Questions (“FAQs”) concerning the CFCA. While the FAQs were directed toward applicants, they provide useful guidance on how employers may conduct a compliant criminal background check.
What is the Fair Chance Act?
The CFCA prohibits certain California employers from requesting information about conviction history before making a job offer. The CFCA is commonly referred to as the “Ban-the-Box” law.
Who does the Act apply to?
Employers with five or more employees nationwide and at least one employee in California.
What does the Act Prohibit?
Employers are specifically prohibited from the following prior to making a conditional offer of employment:
- Including on any application for employment any questions that seeks the disclosure of an applicant’s conviction history;
- Inquiring into or considering the conviction history of the applicant, including any inquiry about the conviction history on any employment application;
- Considering, distributing, or disseminating information about any of the following while conducting a conviction history background check in connection with any application for employment:
- An arrest not followed by a conviction;
- Referral to, or participation in, a pre-trial or post-trial diversion program;
- Convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.
Can an Employer Ask about Criminal History after Making a Conditional Offer of Employment?
Yes. Once an offer has been made, employers are permitted to conduct a criminal history check, but the law requires an individualized assessment about the conviction history that is discovered. This means an employer cannot rescind the offer without considering the nature and gravity of the criminal history, the time that has passed since the conviction, and the nature of the job.
The DFEH provides the following example in its FAQ as an acceptable question series after a conditional offer is made:
- Have you ever been convicted of a misdemeanor or felony? Answer “NO” if : (1) you have never been convicted of a misdemeanor or felony; (2) the misdemeanor or felony was sealed, dismissed, expunged, or reversed on appeal; (3) you withdrew your plea after completing a court program and were not convicted of a misdemeanor or felony.
Can an Employer Rescind a Job Offer after Learning about Conviction History?
Yes. However, if after completing an individualized assessment the employer intends to deny an applicant a position of employment solely or in part because of the applicant’s conviction history, they must follow the notice procedures laid out in the CFCA. The FAQs provide the following additional context and guidance on these requirements:
- Notification in writing: The employer must notify the applicant, in writing, of the preliminary decision that the conviction history disqualifies the applicant from employment;
- Notice of disqualifying conviction: The employer must provide the applicant a notice of the convictions that disqualify them from employment;
- Copy of conviction history report: If the employer obtained a copy of the applicant’s conviction history report, they must provide a copy of the report;
- Five business days for applicant to respond: The employer must inform the applicant of their opportunity to respond to the preliminary decision to rescind a job offer and provide at least five business days to do so. The employer must also inform the applicant that they may submit information and evidence challenging the accuracy of the conviction history report and evidence of rehabilitation the applicant believes the employer should consider. The FAQs provide the following examples of this type of evidence, including: employment history, an explanation of circumstances about the applicant’s involvement in the crime, and rehabilitation efforts such as education or training;
If the applicant responds to the employer within the initial five days and disputes the conviction history report the applicant is entitled to an additional five days to provide additional information as part of their response.
- Consideration of applicant’s response: The employer must consider any information the applicant submits in their response to #1 above;
- Final notification of decision in writing: After considering any information submitted by the applicant, the employer must notify the applicant, in writing, of any final disqualification from the job, any procedure the employer has to challenge that final disqualification, and the right of the applicant to file a complaint with the DFEH.
Are there other Considerations for Employers under the Act?
The new regulations, effective October 1, 2020, expand the definition of “applicant” to cover individuals who are conditionally offered employment and begin working for the employer while the employer continues to review the individual’s criminal history. These individuals are still protected by the CFCA in the event the employer decides to rescind an offer based on an individual’s criminal history.
What are the Penalties for Non-compliance?
Since the CFCA is part of Fair Employment Housing Act (FEHA), an aggrieved applicant may sue for the full range of FEHA damages and remedies available, including compensatory damages, attorney’s fees, and costs.
Employer Action Items
- Employers should consider reviewing their hiring process, job postings and applications, to ensure compliance, including the timing of criminal history background checks, and the distribution of appropriate notice of an intent to rescind an offer based on criminal history.
- Employers should also ensure human resources and hiring staff are fully informed about when and how, criminal background information may be considered in the hiring process.
- Employers working with Sequoia One are encouraged to reach out to their dedicated HR Business partner with any questions.
- Department of Fair Employment and Housing
- Fair Employment and Housing Council Regulations
- Fair Chance Act
- Frequently Asked Questions
Disclaimer: This content is intended for informational purposes only and should not be construed as legal, medical or tax advice. It provides general information and is not intended to encompass all compliance and legal obligations that may be applicable. This information and any questions as to your specific circumstances should be reviewed with your respective legal counsel and/or tax advisor as we do not provide legal or tax advice. Please note that this information may be subject to change based on legislative changes. © 2020 Sequoia Benefits & Insurance Services, LLC. All Rights Reserved