Employers in California must follow strict hiring rules when considering applicants with criminal histories under the Fair Chance Act. The law limits background checks before offers and requires case-by-case reviews before withdrawing conditional employment offers.
By Brad Nakase, Attorney
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Employers are prohibited by the California Fair Chance Act from basing hiring choices on a candidate’s criminal record or conviction history. Like everyone else, those with criminal records require employment opportunities in order to provide for their families, strengthen their relationships with society, and open doors to independence. The California Fair Employment & Housing Act, which the Civil Rights Department upholds, includes the California Fair Chance Act. California Government Code Section 12952 & California Code of Regulations Title 2 Section 11017.1 contain the applicable regulations.
Employees: The law covers job seekers, those who begin working before their employer performs a background investigation, workers who are being promoted, and workers who are otherwise subject to a background investigation.
Employers: Any private or public company with five or more workers is subject to the California Fair Chance Act. This covers labor contractors, union hiring halls, and interim employment organizations.
Exceptions: State law enforcement agencies, farm labor contractors, some jobs at health care organizations, and any other position where a company is legally obligated to perform background checks or limit employment based on past criminal activity are exempt from the statute.
It should be noted, however, that the Fair Employment & Housing Act of California prohibits employers from using criminal histories in hiring decisions if doing so results in an “adverse impact” on individuals due to legally protected traits, like race, and does not serve a valid business purpose.
For example, unless the company could demonstrate that the practice was required for safe and efficient business operations, they could not reject a candidate because of criminal history when hiring for a position exempt from the California Fair Chance Act if doing so caused a particular race to be underrepresented among job applicants.
Generally speaking, it is illegal for employers to inquire about or take into account a job applicant’s criminal background before making an employment offer under the Fair Chance Act.
This implies that most businesses are unable to:
Employers are permitted to perform a background check following the issuance of a conditional job offer. However, there are some facts that an employer will never take into account.
This comprises:
Employers are not allowed to deny an individual employment just based on their criminal background/history. They also cannot turn down the applicants on the basis of their convictions, such as violent or sexual offenses.
Instead, before choosing not to proceed with employment, the employer has to conduct an individual review if something about the applicant’s background check raises concerns.
An individual evaluation aids the employer in determining if the applicant’s criminal record is directly and negatively related to the responsibilities of the particular position for which they are applying. The employer must take into account the following elements as a component of the customized assessment:
The employee must be notified in writing of the employer’s initial (non-final) judgment to revoke the job offer if the company determines that the candidate’s criminal record directly and negatively affects their ability to do the job. Included in the notice must be:
CRD urges firms to explain their rationale to candidates for employment.
Following communication from the employer, the job candidate may—but is not obligated to—provide details that could provide the employer with additional insight into their background, the events leading up to the conviction, and the ways in which their life or conditions have changed. We refer to this as proof of mitigating or rehabilitation circumstances. Information on mitigating or rehabilitation circumstances can be found in:
To provide evidence about this information, one can submit certificates like their completing a program (education, treatment, job training, etc.); letters of support; police records or other records testifying to their surviving sexual assault, domestic or dating violence, stalking, and other crimes; documents proving that they are impaired; and/or any other documentation proving that they engaged in rehabilitation activities and mitigating circumstances.
The candidate for the job may potentially contest the veracity of the data the employer used. This involves informing the employer that the background check contained an error. Following submission of this data, the employer must take it into account when determining whether the applicant’s criminal record is directly and negatively related to the job responsibilities. We call this a reassessment.
Employers must follow particular procedures if the job candidate fails to give further information or if they still wish to revoke the offer of employment following reevaluation. The job seeker must be informed in writing by the employer of their right to lodge a grievance with the Civil Rights Department, as well as any procedures they may have to contest or appeal the decision.
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