California Clamps Down on Fair Chance Act Violations

The California Fair Chance Act (the Act) seeks to enable job applicants with criminal histories to obtain gainful employment.  Under the Act, employers with five or more on payroll cannot obtain criminal background information until after extending a conditional offer of employment.  Upon receipt of any criminal conviction information, the employer must engage in the “fair chance process” i.e., evaluating the applicant’s criminal history as well as any mitigating circumstances before rescinding the job offer.

The California Department of Fair Employment and Housing (DFEH) recently began using technology designed to conduct mass searches of online job advertisements for statements that violate the Act, such as “No Felons” or “Must Have Clean Record.” In a single-day search, the DFEH found over 500 unlawful job postings and has sent cease-and-desist letters to the violators.

DFEH Director Kevin Kish announced the process in a recent press release: “Using technology to proactively find violations of the state’s anti-discrimination laws is a powerful strategy for our department to protect Californians’ civil rights.”

The DFEH has also recently issued a toolkit to assist employers in complying with the Act.  It includes:

• Sample “fair chance process” procedural forms and instructions;
• Suggested language to add to job advertisements and applications;
• Frequently-asked questions; and
• An informational video about the Act

The DFEH also plans to release an interactive training and an online app in 2022.

Take-Aways:

Covered employers should ensure their job advertisements and employment applications comply with the Act.  They should also educate and train their supervisors and human resources team on all of the Act’s required procedures.

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

See also:

• Find Out What’s New in 2022 – Annual Seminar for Employers Covering Employment Legal Essentials and New Workplace Laws for 2022 (November 24, 2021)
• Good Workplace Policy is Boss – Our Template Handbook & Forms for 2021 (May 28, 2021)
• New for 2018 California Adopts Ban the Box Law – Ban The Box California 2018 Means Employers Cannot Seek Criminal Record Until After Offer to Hire Applicant(October 27, 2017)

Cindy Bamforth
December 10, 2021