THE FAIR CHANCE ACT

Job Application form.

California’s Fair Chance Act

The Fair Chance Act (Assembly Bill No. 1008), effective January 1, 2018, makes it illegal for most employers in California (with five or more employees) to ask about the criminal record of job applicants before making a job offer. This means ads, job applications, and interview questions cannot include inquiries into an applicant’s criminal record. After a conditional job offer is issued, employers are allowed to conduct a criminal conviction history check, but the law requires an individualized assessment before making a decision based on this conviction history.

The purpose of the law is to allow applicants to be judged based on their qualifications. This type of law is also known as a “Ban the Box” law.

FAIR CHANCE HIRING PROCESS

Individualized Assessment

After a conditional job offer is issued, employers are allowed to conduct a criminal conviction history check, but the law requires an individualized assessment.

Factors to consider in the preliminary assessment should include:

  • Nature and gravity of the offense or conduct
  • Time that has passed since the offense or conduct and completion of the sentence
  • Nature of the job held or sought

Factors to consider in the final decision should include:

  • Evidence challenging the accuracy of the conviction history report that forms the basis for rescinding the offer
  • Evidence of rehabilitation or mitigating circumstances

“BAN THE BOX” FREQUENTLY ASKED QUESTIONS

Please check with your legal counsel for up-to-date and specific guidelines on what types of criminal history questions are permissible under the law.

WHAT IS THE CALIFORNIA FAIR CHANCE ACT?

The Fair Chance Act, which went into effect on January 1, 2018, is a California law that generally prohibits employers of more than 5 employees from asking about the conviction history of an applicant before making a job offer. This type of law is also known as a “Ban the Box” law. After a conditional job offer is issued, employers are allowed to conduct a criminal conviction history check, but the law requires an individualized assessment.

HOW DOES THE LAW WORK?

The law generally prohibits employers from:

  • Including on a job application any questions about conviction history before a conditional job offer has been made
  • Asking about or considering criminal history before a conditional job offer has been made
  • Considering information about arrests not followed by conviction, participation in pre-trial or post-trial diversion programs, or convictions that have been sealed, dismissed, expunged, or statutorily eradicated

An employer cannot simply say that they won’t hire anyone convicted of a certain crime.

After offering a candidate a job, employers are allowed to conduct a criminal history check, but the law requires an individualized assessment about the candidate’s conviction history. That means an employer can’t take back a job 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 you are seeking (commonly known as the “nature-time-nature” test).

If an employer decides to take back a job offer based on the applicant’s criminal history, the employer must do so in writing, and provide a copy of any conviction history report on which they relied, and provide the applicant at least five business days to respond.

DOES THE LAW APPLY TO ME?

Public and private employers with five or more employees are covered by the law. But there are some exceptions. The law does not apply to certain positions at health care facilities, farm labor contractors, or positions with state criminal justice agencies. It also does not apply to any position where an employer is required by another law to conduct background checks or restrict employment based on criminal history.

WHAT IS AN INDIVIDUALIZED ASSESSMENT?

Factors to consider in the preliminary assessment should include:

  • Nature and gravity of the offense or conduct
  • Time that has passed since the offense or conduct and completion of the sentence
  • Nature of the job held or sought (the essential functions and the job environment)

Factors to consider in the final decision should include:

  • Evidence challenging the accuracy of the conviction history report that forms the basis for rescinding the offer
  • Evidence of rehabilitation or mitigating circumstances

AFTER A CONDITIONAL OFFER OF EMPLOYMENT, WHAT CAN I ASK ABOUT AN APPLICANT'S CRIMINAL HISTORY?

After a conditional offer, an employer may conduct a criminal conviction/ background test and ask an applicant if they have any history of convictions. But employers may not ask about or consider information about (1) an arrest that did not result in a conviction (subject to the exceptions in Labor Code § 432.7(a)(1) and (f)); (2) referral to or participation in a pre-trial or post-trial diversion program; or (3) convictions that have been sealed, dismissed, expunged or statutorily eradicated pursuant to law.

The following is an example of a permissible question after a conditional offer:

  • Have you ever been convicted of a misdemeanor or felony?

An applicant can answer “NO” if : (1) they have never been convicted of a misdemeanor or felony; (2) the misdemeanor or felony was sealed, dismissed, expunged, or reversed on appeal; (3) the applicant withdrew a plea after completing a court program and was not convicted of a misdemeanor or felony.

WHICH CONVICTIONS CAN BE CONSIDERED?

Substantively, a wide range of criminal records are off-limits to California employers (unless the employer qualifies for very narrow exceptions identified in the Labor Code). Records that cannot be used are:

  • Arrests that did not lead to a conviction.
  • Nonfelony marijuana convictions that are older than two years.
  • Juvenile records.
  • Diversions and deferrals.

Please check with your legal counsel for up-to-date and specific guidelines on what types of criminal history questions are permissible.

CAN I TAKE BACK (RESCIND) A JOB OFFER BASED ON A CANDIDATE'S CRIMINAL HISTORY?

Before an employer can take back (rescind) a conditional job offer because of criminal history, it must do the following.

  • Individualized assessment: The employer must make an individualized assessment about the candidate’s conviction. That means that an employer has to consider the nature and gravity of the criminal history (the harm caused by the criminal conduct), the amount of time that has passed since the conviction, and the nature of the job the applicant is seeking (the essential functions and the job environment). An employer cannot simply say that they won’t hire anyone convicted of a certain crime.

For instance, if a job applicant who had a prior conviction for drug possession applied for a position as a food service worker, you should probably not deny the applicant employment based solely on this criminal record.

  • Notification in writing: The employer must notify the applicant in writing of the preliminary decision that their conviction history disqualifies them 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 the applicant with a copy of the report.
  • Chance to respond: The employer has to give the applicant at least five business days to respond to the preliminary decision to take back the applicants job offer (and has to tell them that they are allowed to respond). If the applicant disputes the conviction history report, and they tell the employer within five days, then they get an additional five days to respond. The employer has to tell the applicant that their response can include any evidence challenging the accuracy of the conviction history report, plus any evidence of their rehabilitation or circumstances that they believe are important for the employer to consider about their life or the crime. Examples of this type of evidence include their employment history, an explanation of circumstances about their involvement in the crime, and rehabilitation efforts such as education or training.
  • Consideration of the applicant’s response: The employer must consider any information the applicant submits in response.
  • Final notification in writing: After considering any information the applicant submits, 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 their right to file a complaint with the Department of Fair Housing and Employment.

WHAT IS THE HIRING PROCESS MANDATED BY THE LAW?
WHAT RIGHTS DO EMPLOYEES HAVE UNDER THE LAW?

There are consequences to violating the Fair Chance Act. Within one year of an employer violating the Act, a job applicant can file a complaint with the California Department of Fair Employment and Housing (DFEH) to report violations. Applicants may then have DFEH investigate their claim, or they may choose to file a lawsuit in court. Employers may be ordered to compensate job applicants for the violation of their rights and any harm it caused them.

ARE THERE ANY OTHER FAIR CHANCE ORDINANCES APPLICABLE TO ME?

Employers that hire in the cities of Los Angeles and San Francisco must also look to the ban-the-box ordinances in these jurisdictions, which exceed the requirements found in the Fair Credit Reporting Act (FCRA) and the California ban-the-box law. (see below for links to the LA City Fair Chance Ordinance)

IS THERE A DIFFERENCE BETWEEN CALIFORNIA AND LA CITY FAIR HIRING ORDINANCES?

The Los Angeles ordinance, effective Jan. 22, 2017, applies to any employer located or doing business in the City of Los Angeles and employs 10 or more employees. An employee is any person who performs at least two hours of work on average each week in the City of Los Angeles and who is covered by California’s minimum wage law. The ordinance also applies to job placement and referral agencies and is broad enough to cover other types of work, including temporary and seasonal workers and independent contractors.

The L.A. ordinance goes beyond California-imposed requirements by imposing the following steps on employers when considering criminal history (regardless of the source):

  • Perform a written assessment that “effectively links the specific aspects of the applicant’s criminal history with risks inherent in the duties of the employment position sought by the applicant.” The assessment form that contains the relevant factors can be found on the city’s website.
  • Provide the applicant a “Fair Chance Process”—giving the applicant an opportunity to provide information or documentation the employer should consider before making a final decision, including evidence that the criminal record is inaccurate, or evidence of rehabilitation or other mitigating factors. As part of this process, the employer must include with the pre-adverse action notice a copy of the written assessment and any other information supporting the employer’s proposed adverse action.
  • Wait at least five business days to take adverse action or fill the position. If the applicant provides additional information or documentation, the employer must consider the new information and perform a written reassessment, which is at the bottom of the form mentioned above. If the employer still decides to take adverse action against the applicant, the employer must notify the candidate and attach a copy of the reassessment with the adverse action notice.

Los Angeles City also states that all solicitations and advertisements for Los Angeles opportunities must state that the employer will consider qualified candidates with criminal histories in a manner consistent with the law.

Moreover, employers must post, in a conspicuous workplace that applicants visit, a notice that informs candidates of the Los Angeles ordinance. Copies of the notice must be sent to each labor union or representative of workers that has a collective bargaining agreement or other agreement applicable to employees in Los Angeles. This notice can be found on the City’s website.