CHECK YOUR BACKGROUND CHECK POLICIES: CALIFORNIA AMENDS THE FAIR CHANCE ACT

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Patricia Tsipras

August 17, 2023

On July 24, 2023, California’s Civil Rights Department (formerly the Department of Fair Employment and Housing) amended the Fair Chance Act.  The amendments become effective on October 1, 2023.

A Short Primer on the Fair Chance Act
Since 2018, California’s Fair Chance Act has aimed to reduce undue barriers to employment for individuals with criminal histories.  The Act generally prohibits employers with five or more employees from asking job applicants – before making a job offer – about their conviction history.

Expanded Definition of “Employer”
The 2023 amendments expand the term “employer” to include not only direct employers, but also entities that act as agents for an employer to evaluate an applicant’s criminal history.

Expanded Definition of “Applicant”
The amendments expand the definition of “applicant” to include existing employees who apply for, or express interest in, different positions within their current organization.  “Applicant” now also includes “an existing employee who is subject to a review and consideration of criminal history because of a change in ownership, management, policy or practice.”

Notice of Preliminary Decision and Opportunity to Respond
If an employer makes a preliminary decision that an applicant’s criminal history disqualifies them from the applicant pool, then the employer now must notify the applicant in writing.  The notice must:

• identify the disqualifying conviction that is the basis for the preliminary decision
• include a copy of the conviction history report on which the employer relied in making their decision
• advise the applicant of their right to respond before the preliminary decision becomes final
• explain the type of evidence that the applicant can submit to challenge the conviction history or as evidence of rehabilitation or mitigation
• notify the applicant of the deadline to respond

An Individualized Assessment
The Fair Chance Act requires that employers’ preliminary decisions be based on “individualized assessments.”  The amendments clarify that individualized assessments must consist of a “reasoned, evidence-based determination” and must provide detail on whether the applicant’s conviction history has a direct and adverse relationship with the job’s specific duties such that it justifies denying the applicant the position.

Rehabilitation and Mitigating Circumstances
The amendments further clarify that providing evidence of rehabilitation or mitigation is optional.  Employers are prohibited from:

• refusing to accept additional evidence that an applicant voluntarily provides
• requiring an applicant to submit any additional evidence or a specific type of documentary evidence
• disqualifying an applicant from the job conditionally offered for failing to provide any specific type of evidence
• requiring an applicant to disclose their status as a survivor of domestic or dating violence, sexual assault, stalking, or comparable statuses
• requiring an applicant to produce medical records and/or disclose the existence of a disability or diagnosis

Reassessing the Application
The amendments also outline factors that employers may consider when making a final decision regarding whether to rescind an applicant’s conditional offer of employment.  Those factors include:

• when the conviction led to incarceration, the applicant’s conduct during incarceration, including participation in work and educational or rehabilitative programming and other prosocial conduct
• the applicant’s employment history since the conviction or completion of the sentence
• the applicant’s community service and engagement since the conviction or completion of sentence, including, but not limited to, volunteer work for a community organization, engagement with a religious group or organization, participation in a support or recovery group, and other types of civic participation
• the applicant’s other rehabilitative efforts since the completion of the sentence or conviction or mitigating factors

Next Steps for Employers
Before the amendments’ October 1, 2023 effective date, California employers should update their background check policies and educate any interviewers or hiring personnel on the amended law.

*Special thanks to Brooke Palma, our Office Administrator, for her contributions to this article.

The author of this article, Patricia Tsipras, is a member of the Bar of Pennsylvania.  This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice in California, Pennsylvania, or any other jurisdiction, nor does it establish an attorney-client relationship with any reader of the article where one does not exist.  Always consult an attorney with specific legal issues.