Question: Our company conducts criminal background checks of prospective employees. Do we need to change our procedures based on the recently revised regulations?
Answer: Yes. The Fair Chance Act prohibits employers from inquiring about an applicant’s criminal history until after making a conditional offer of employment. The recently revised Fair Chance Act regulations are effective October 1, 2023, and provide detailed guidance for employers who conduct criminal background checks.
Among other provisions, the revised Fair Chance Act regulations prohibit employers from:
- Including statements in advertisements or applications stating that those with a criminal history will not be considered.
- Considering any criminal history voluntarily provided by an applicant before the employer decides to make a conditional job offer.
The new regulations clarify that an “applicant” includes existing employees who undergo a background check for consideration of a different position or a change of ownership, management, policy or practice. The regulations also clarify that the definition of “employer” includes agents evaluating an applicant’s criminal history, staffing agencies, and entities obtaining workers from a pool or availability list.
Before an employer decides not to hire an applicant because of the applicant’s criminal history, the employer must conduct an individualized assessment of whether the individual’s criminal history has a direct and adverse relationship with the specific job duties. That individualized assessment must evaluate:
- The nature and gravity of the offense or conduct;
- The time that has passed since the offense or conduct and/or completion of the sentence;
- and,
- The nature of the job held or sought.
The revised regulations list thirteen non-exclusive criteria that employers must consider for an individualized assessment. Some of the factors include, whether the harm was to property or people; the degree and permanence of the harm; the context of the offense; the applicant’s age; the amount of time since the conduct or the release from incarceration; the likelihood of the context and/or type of harm from the underlying conviction arising in the workplace. The employer must also consider whether a disability, trauma, domestic or dating violence, sexual assault, stalking, human trafficking, duress or other similar factors contributed to the offense or conduct.
After performing the individualized assessment, if an employer decides to rescind a conditional job offer because of the applicant’s criminal history, an employer must send a pre-adverse action letter to the individual and allow the individual an opportunity to provide the employer with any additional information. The applicant must provide the additional information within five business days of receipt of the letter.
In response to a pre-adverse action letter, the individual can voluntarily provide evidence challenging the accuracy of the conviction history and/or evidence of rehabilitation or mitigating circumstances. The regulations identify the types of evidence employers must consider, such as the likelihood that similar conduct will recur; the individual’s age at the time of the conduct; the fact the applicant is seeking employment; the length and consistency of the individual’s employment history before and after the offense or conduct; compliance with probation or parole; and the applicant’s self-improvement efforts.
Employers who utilize background check policies should review the revised regulations and update their background check policies and procedures accordingly. The California Civil Rights Department enforces the Fair Chance Act and may award aggrieved applicants monetary damages and other remedies.