The Fair Chance Act: Applicants with Criminal Convictions
by David G. Ritchie on February 29, 2024
posted in Administrative Regulations, Employment Law, Uncategorised,
The Fair Chance Act is a California Law enacted in 2017 (and took effect on January 1, 2018) that is part of the Fair Employment and Housing Act (Government Code 12952 et. seq.) prohibiting employers with five or more employees from asking applicants about criminal convictions before making job offers to them. In some places these laws are referred to as “Ban The Box” laws.
What exactly does this Act prohibit?
1. Employers cannot list questions on job application forms asking about criminal conviction history before a conditional job offer is made.
2. Employers cannot ask about or consider information about an applicant’s criminal history (however obtained) before a conditional job offer is made.
3. Employers cannot consider information about arrests that did not lead to convictions, diversion program participation (pre- or post-trial), pending charges, convictions that were sealed, dismissed or eradicated or those that have been expunged or statutorily deleted.
What can an employer do with this type of applicant?
After issuing a job offer an employer can conduct a criminal conviction background check. It can ask about conviction history but not about arrests that did not lead to convictions except those in which the applicant is currently out on bail pending trial or (for healthcare facilities only for those with patient care jobs) arrests involving sex offender registration requirements, or (for healthcare facility jobs that involve dispensing medications) certain narcotic drug arrests. Employers still cannot ask about items that are referred to pre-trial or post-trial diversion programs or about expunged or otherwise dismissed items (or those reversed on appeal).
Which employers are covered?
Public and private sector employers with five or more employees are covered generally. However, this does NOT apply to jobs for which a state or local government agency has a separate requirement by law to conduct a conviction history background check. It does not apply to job applicants to any criminal justice agencies, or farm labor contractors. Finally it does not apply for job positions where an employer or agent thereof is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history. For purposes of this last exception, federal law includes rules or regulations promulgated by a self-regulatory organization as defined in Section 3(a)(26) of the Securities Exchange Act of 1934, as amended.
QUICK TIPS:
1. A sample question that is legally permissible is below:
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 weren’t convicted of a misdemeanor or felony.
2. When you get a conviction history report back:
When the results are received, an employer must do an individualized assessment of the conviction history. That assessment must include, at least, consideration of: the nature and gravity of the offense(s), the time that has passed since the conviction, the nature of the job being applied for. Employers cannot rescind a conditional offer without conducting the individualized assessment. After the assessment, if an employer decides it is rescinding the offer based on the criminal history, it must provide written notice of this decision to the applicant of this decision. Employers must identify the conviction(s) that are disqualifying, provide a copy of any conviction history report(s) that were relied upon in making that decision. Employers must give an applicant five days to respond to the letter. A final decision can be made after considering the applicant’s response. If the decision remains the same, the employer must notify the applicant of this final decision in writing, identify any appeal procedures the applicant may have and advise them of their right to file a civil rights complaint with the State.
3. If an Employer asks for information unlawfully and an applicant lies:
If an applicant does not disclose information in response to an unlawfully posed question, an employer cannot revoke employment, cancel a conditional offer, or make other adverse employment decisions based on the failure to disclose.
4. Is there a limitations period for the applicant?
An applicant who wishes to file a complaint must complete the filing with the Civil Rights Division within three years of the date of the occurrence.
