Last week’s blog, Helping Criminals Back Into Society, warned employers with five or more on payroll to steer clear of California Fair Chance Act (Act) hiring practice violations.

Effective October 1, 2023, the state Civil Rights Department (CRD) has issued revised regulations on the Act’s requirements.  Among other things, the revisions direct individual assessment for each applicant with a criminal history disclosed or discovered ● by a post-hiring offer background check, ● during an employee’s move to a new post, or ● on change in the business’s ownership or management.

Assessment factors include:

• The nature and gravity of the crime, including:
  • The applicant’s conduct;
  • Whether and to what extent persons or property were harmed, including whether the harm was permanent;
  • The context of the crime, including past drug addiction,  mental impairment or traumas such as human trafficking, violence, or sexual assault contributed to the commission;
  • Whether a drug addiction or mental impairment has been mitigated or eliminated or could be via reasonable accommodation;
  • The applicant’s age at the time of the crime.
• When the crime occurred;
• Time elapsed since release from any incarceration; and
• The nature of the job in question, including its duties and whether the crime’s context or the resulting type or degree of harm “is likely to occur in the workplace.”

A person later licensed by a government agency or bonded post-conviction to perform a profession or occupation “is probative of the applicant’s conviction history not being directly and adversely related to the specific duties of that job.”

At least five days before a final decision on a conviction’s effect on hiring, the employer must notify the applicant of the right to respond.  The regulations specify how the five days is counted depending on how the notice is delivered (e.g., by hand, email, etc.).

The applicant may submit correcting or mitigating information and documentation personally and/or from third parties, for example support letters from teachers, parole officers, or supervisors; police reports; healthcare records; or evidence of rehabilitation. The employer must accept and consider all timely submissions and not insist on receiving particular documents.

Take-Aways: 

The Fair Chance Act requires California employers of five or more persons to make conditional offers of employment before checking criminal background and to follow regulation guidelines if a criminal background surfaces post-offer.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• Fair Warning – California Clamps Down on Fair Chance Act Violations (December 10, 2021)
• Know Your Boundaries – New Employer Restrictions on Hiring Notices and Interviews Starting 1, 2020 (June 12, 2020)
• California Adopts Ban the Box Law – Employers Cannot Seek Criminal Record until after Offer to Hire Applicant (October 27, 2017)

Helena Kobrin
September 29, 2023