The Fair Chance Act, which went into effect on January 1, 2018, is a California law that generally prohibits employers with five or more employees from asking about a job applicant’s conviction history before making a job offer.
California enacted the Fair Chance Act to reduce barriers to employment for individuals with conviction histories. The Fair Chance Act is part of California’s employment anti- discrimination statute called the Fair Employment and Housing Act (FEHA), which is enforced by the Civil Rights Department (CRD). The Fair Chance Act is codified at Government Code section 12952.
For employers who are unfamiliar with this law, the the Civil Rights Council of the California Civil Rights Department has published an FAQ on its website.
On July 24, 2023, the California Office of Administrative Law approved the California Civil Rights Council’s modifications to regulations which implement the California’s Fair Chance Act. The new regulations take effect on October 1, 2023, and employers are encouraged to understand and implement these changes before the deadline.
Among the many changes to the regulations, is the requirement that if after a conditional offer of employment is made, and subsequently decides to deny the applicant the employment position ” based solely or in part on the applicant’s conviction history,” the employer must have made a reasoned, – and this must now under the new regulations be an “evidence-based determination” – of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.
The new regulations then continue to provide detail on what may be taken into consideration in assessing the factors to determine whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.
Many of the new regulations help clarify employers obligations, and some new ones are added. These include expanded definitions which apply only to § 11017.1 “Consideration of Criminal History in Employment Decisions” such as:
– – (1) “Applicant” includes, in addition to the individuals within the scope of the general definition in section 11008(a) of these regulations, individuals who have been conditionally offered employment, even if they have commenced employment when the employer undertakes a post-conditional offer review and consideration of criminal history; existing employees who have applied or indicated a specific desire to be considered for a different position with their current employer; and an existing employee who is subjected to a review and consideration of criminal history because of a change in ownership, management, policy, or practice. An employer cannot evade the requirements of Government Code section 12952 or this regulation by having an individual lose their status as an “applicant” by working before undertaking a post-conditional offer review of the individual’s criminal history.
– – (2) “Employer” includes a labor contractor and a client employer; any direct and joint employer; any entity that evaluates the applicant’s conviction history on behalf of an employer, or acts as an agent of an employer, directly or indirectly; any staffing agency; and any entity that selects, obtains, or is provided workers from a pool or availability list.
Employers are prohibited from including statements in job advertisements, postings, applications, or other materials that no persons with criminal history will be considered for hire, such as “No Felons” or “Most Have Clean Record.”
The new regulation also adds a description of evidence of rehabilitation or mitigating circumstances that an applicant voluntarily may provide to the employer.
And in the event they do voluntarily provide such evidence, the new regulations added a provision prohibiting the employer from refusing “to accept additional evidence voluntarily provided by an applicant, or by another party at the applicant’s request, at any stage of the hiring process (including prior to making a preliminary decision to rescind the applicant’s job offer)”
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