If you employ in California, you will need to make changes to your background check process
to comply with the new Fair Chance Act (FCA) regulations
CURRENT LAW – The California Fair Chance Act
The original law went into effect in 2018. It prohibits employers from asking about an applicant’s criminal history until after a conditional offer of employment has been made to the applicant. If an employer contemplates not hiring an individual because of their criminal history, the company must perform an individualized assessment as to whether the applicant’s criminal history “has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.”
The assessment considers the following factors:
- The nature and gravity of the offense or conduct.
- The time that has passed since the offense or conduct and completion of the sentence.
- The nature of the job held or sought.
If an employer believes an individual should not be hired …
- After completing an individualized assessment, the employer must send written notice to the individual of the potential adverse action (commonly referred to as a pre-adverse action letter) and allow the applicant to respond.
- The applicant must be given at least five business days to respond with additional information, such as rehabilitation efforts or mitigating circumstances.
- The employer must consider any new information provided and conduct a reassessment.
- If the employer then decides not to hire the individual, it must send a notice to the applicant regarding its decision and notify the applicant of their rights.
NEW CHANGES IN THE LAW – Effective Oct. 1, 2023
Previously, the FCA was interpreted to only apply to applicants or current employees seeking a position within a company. Here are the expanded definitions now included in the new law:
- The term “applicant” now includes an employee who undergoes a background check in connection with a change in ownership, a change in management, or a change in policy or practice.
- The term “employer” now includes not only direct employers but also entities acting as agents or evaluating an applicant’s criminal history on behalf of an employer, staffing agencies, and entities obtaining workers from a pool or availability list.
- Employers cannot include “criminal history” statements in job advertisements, postings, applications, or other materials that persons with criminal history will not be considered for hire—statements such as “No Felons” or “Must Have Clean Record” are not allowed.
- Employers must disregard criminal history information even if an applicant voluntarily offers it prior to receiving a conditional offer.
REVISED LIST OF ASSESSMENT FACTORS FOR THE NEW LAW:
The new regulations have provided a list of sub-factors that employers must consider at a minimum as part of the individualized assessment [see list below]. Since most of this information is not readily available, employers should consider asking for this information before conducting an individualized assessment and sending a pre-adverse action letter. Employers can request this information from an applicant with a criminal history, but employers cannot require them to respond—and the applicant can choose what information to provide.
Expanded assessment factors:
- 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 and whether the type or degree of harm that resulted from the conviction is likely to occur in the workplace.
Evidence of rehabilitation
Employers must consider evidence of rehabilitation and mitigating circumstances provided by the applicant. This has always been a requirement, but the new regulations set forth a list of examples of such evidence that employers should consider, such as:
- The applicant’s conduct during incarceration.
- Employment history since the conviction or sentence completion.
- Community service and other rehabilitative activities.
- Applicants may also disclose whether trauma, domestic or dating violence, sexual assault, stalking, human trafficking, duress, or other similar factors contributed to the offense or conduct.
- Applicants may identify a disability, such as a past drug addiction or mental impairment, which contributed to the offense or conduct.
- The applicant may also note whether the likelihood of harm arising from similar conduct could be sufficiently diminished or eliminated by a reasonable accommodation made by the employer or whether the disability has been mitigated or eliminated by treatment or otherwise.
- Employers cannot refuse to accept any evidence provided by the applicant.
EMPLOYERS NEXT STEPS
Employers who have employees in California should immediately revise their background check policies for compliance with these new changes as well as educate any individuals involved in the applicant screening/background check process. This includes coordinating with any third-party services you enlist to assist you with this process.
If you co-employ with Cardinal or use our hiring services, we are already complying with these new regulations. Call our HR Specialists immediately at (800) 342.4742 if you have any questions or concerns.