Employers in California must prepare for changes to the Fair Chance Act. The Fair Chance Act prohibits employers from asking about an applicant’s criminal background before offering employment contingent on the screening results. It also requires employers to conduct individualized job-related assessments before rejecting applicants due to criminal history. Should employers reject an applicant due to the background, they must follow a process similar to the Fair Credit Reporting Act (FCRA).

Beyond these requirements, the California Office of Administrative Law has approved changes to the Fair Chance Act regulations. According to the Office, the California Civil Rights Council proposed these amendments, which will take effect on October 1, 2023. It will affect employers with five or more employees. These changes could impact how employers use criminal history when making hiring or other employment decisions.

Mentioned Changes

One change to the Fair Chance Act requires employers to notify applicants of preliminary decisions in writing. For example, when the employer feels an applicant’s criminal history could disqualify them from a position. This written notice must detail the disqualifying conviction and include a copy of the report used to make the decision.

The notice must also include the “applicant’s right to respond to the notice before the preliminary decision rescinding the offer of employment becomes final.” Furthermore, it must explain that “the response may include submission of either or both of the following types of evidence: evidence challenging the accuracy of the conviction history report that is the basis for the preliminary decision to rescind the offer or evidence of rehabilitation or mitigating circumstances.”

Other modifications concern the individualized assessment. These would clarify the list of factors employers may consider during the evaluation. Additionally, they describe what evidence can demonstrate mitigating circumstances or rehabilitation. Providing this evidence is optional, and applicants may personally present it or request a third party to deliver it.

Amendment Examples

In addition, the amendments ban employers from taking several actions. Examples include, but are not limited to, the following:

• 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 before making a preliminary decision to rescind the applicant’s job offer); 
• Requiring an applicant to submit additional evidence described in this subsection at any time in the hiring process;
• Requiring an applicant to provide a specific type of documentary evidence (e.g., a police report as evidence of domestic or dating violence) or disqualifying an applicant from the employment conditionally offered for failing to provide specific documents or other evidence;
• Requiring an applicant to disclose their status as a survivor of domestic or dating violence, sexual assault, stalking, or comparable statuses, and/or 
• Requiring an applicant to produce medical records and/or disclose the existence of a disability or diagnosis. 

Another change to the Fair Chance Act addresses the reassessment process. Employers must perform reassessments when deciding whether they will continue revoking a conditionally offered job due to an applicant’s criminal history. More information is available in the amended bill, which is currently on a suspense file. Finally, the modified Fair Chance Act would apply to labor contractors, client employers, and union hiring halls.

California employers must prepare to comply with the modified Fair Chance Act by October 1, 2023. The best way for employers to keep up with frequently changing employment laws is to partner with an experienced background check company.

Keep your business compliant with new laws and regulations with JDP’s reliable background checks. Contact a sales rep today

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