Fair Chance Act 2.0: What Employers Need to Know About the Recent Changes to California's Background Check Requirements

Posted by Catherine Chukwueke | Oct 11, 2023

The California Civil Rights Council recently amended the regulations interpreting California's 2018 Fair Chance Act, which went into effect on October 1, 2023. The new regulations add restrictions, make clarifications, and significantly change the California background check process.

Understanding the Core Changes

The 2018 Fair Chance Act now imposes stricter regulations, prompting employers to reassess their background check procedures. The crucial modifications primarily revolve around individualized assessments, broadening the scope of the term "applicant" and redefining the responsibilities of the term "employer."

Individualized Assessments and Factors to Consider

When determining the criminal history of an applicant, employers are required to conduct an individualized assessment. This assessment factors in elements such as the nature and gravity of the offense, the time that has passed since the conduct, and the nature of the job sought. New sub-factors, including harm degree, permanence, and the context of the offense, must be considered.

Expanded Definitions 

Previously applicable to applicants and current employees seeking positions within a company, the FCA now includes individuals undergoing background checks due to changes in ownership, management, or policy. The term "employer" now extends to entities acting as agents or assessing an applicant's criminal history on behalf of an employer, staffing agencies, and those obtaining workers from a pool or availability list.

Eliminating Biases in Job Advertisements

Employers are prohibited from including statements in job materials that suggest persons with criminal history will not be considered for hire, fostering a more inclusive hiring environment.

Voluntary Disclosure and Employer Restraint

Even if an applicant voluntarily discloses their criminal history before receiving a conditional offer, the new regulations emphasize that employers cannot consider such information, promoting a fair and unbiased hiring process.

Enhanced Individualized Assessment Factors

The list of sub-factors within individualized assessments has expanded, covering aspects like disability contributions, trauma influences, and the age of the applicant at the time of the offense. Employers are urged to request this information before conducting an assessment, respecting the individual's right to choose what information to provide.

Timing Considerations and Pre-Adverse Action Letters

After sending a pre-adverse action letter, employers must wait a minimum of five business days before finalizing their decision. Timelines are specified based on delivery methods, emphasizing clarity in communication.

Educational Imperatives

Employers must revise their background check policies, ensuring alignment with the new regulations. Additionally, educating individuals involved in the applicant screening process, including third-party services enlisted, is crucial for seamless compliance.

The recent amendments to California's Fair Chance Act underscore the state's commitment to fostering fair and inclusive hiring practices. Employers are urged to stay informed, adapt their policies, and work towards creating a workforce that values rehabilitation and individual circumstances.

If you have any questions regarding your company's policies or need guidance on California employment law, contact the Law Office of Catherine Chukwueke and schedule a consultation. We are here to help you navigate the complexities of employment law with confidence.

Disclaimer: This article has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. 

About the Author

Catherine Chukwueke

Catherine (“Cathy”) Chukwueke is the Owner and Principal Attorney of the Law Office of Catherine Chukwueke, a law firm focusing on labor and employment matters and workplace investigations. Ms. Chukwueke is passionate about helping people who have been mistreated in the workplace.

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