Background checks are an essential part of the hiring process, with approximately 96% of companies conducting some form of background check during the hiring process. But as privacy becomes a more pressing concern for many individuals and companies, more regulations have been adopted to protect certain rights during the background check process.
In April 2022, the California State Senate’s Judiciary Committee voted to approve a revised Senate Bill (SB 809), commonly referred to as the “Fair Chance Act.” This Act limits most private-sector employers from conducting criminal background checks on job applicants. Now the bill will go to the Senate Appropriations Committee.
This bill makes several changes to the way background checks can be conducted in the state of California.
- Currently, the Investigative Consumer Reporting Agencies Act prohibits certain persons from procuring or causing an investigative consumer report to be prepared for employment purposes unless certain criteria are followed. The Fair Chance Act would add a condition to require the person procuring or causing the report to be made to provide a clear disclosure – in writing – to the person. This disclosure must be provided before the report is procured or requested, and it must be a stand-alone document that only has the disclosure information.
- The disclosure information must be posted and include either all laws and regulations that prohibit discrimination for employment due to criminal history or all of the specific job duties that a conviction may negatively impact.
- Under the current California Fair Employment and Housing Act (FEHA), employers are prohibited from discriminatory practices, including denying applicants due to criminal history. The current law also bans an employer with five or more employees from including a question on the employment application related to criminal history. Employers are also banned from inquiring into or considering an applicant’s conviction history until the applicant has received a conditional offer of employment. This law requires employers that deny an applicant a job due to their conviction history to make an individualized assessment. The assessment must determine whether the applicant’s criminal history directly and negatively impacts specific job duties.
- The Fair Chance Act also makes it unlawful to take adverse action or discriminate against an employee based on a pre-employment arrest or conviction history. This includes activities such as ending an interview, rejecting an application, and terminating an individual’s employment, transfer, or promotion based on criminal history information provided by the applicant or learned from any other source before the potential employer has a conditional offer. Employers would also be required to post clearly-displayed notices informing applicants and employees of their rights, as the law provides.
- The Act adds punitive measures, such as training requirements and civil penalties, for offenders, accounting for the violation’s recurrence and company size. There are procedures for imposing civil penalties and for victims to claim awards from the penalties. In addition, the department would be required to publish an annual report with data about the total number of penalties issued.
- It would protect the existing criminal history discrimination provisions through the end of 2023. Any convictions on or after January 1, 2024, would fall under the new regulations.
In some instances, the changes in the Fair Chance Act would not apply, but it is limited to cases where an employer is required by law to conduct criminal background checks. These cases may include industries where the employee would be in contact with vulnerable populations, such as nursing homes and childcare centers. It may also include employees who must drive frequently for their job, as convictions related to unlawful driving are relevant to the job duties. Since these industries are required by law to consider one’s background check, the Fair Chance Act would exempt them from any of the requirements listed above.
Further, employers are prohibited from considering any information about a potential employee’s criminal history, even if the individual volunteers the information during recruitment. However, they may consider this information after a conditional offer has been made to the applicant.
Employers are also encouraged to consider any evidence of rehabilitation or mitigating circumstances that may impact the conviction or the applicant’s life since conviction.
California is a massive state, and the Fair Chance Act would impact the more than 7 million people who reside in California and have criminal histories. While this legislation hasn’t made it across the finish line yet, it will likely be passed. Therefore, employers in California must be familiar with the changes.
Conducting background checks can be a complex process with many legal pitfalls. To learn more about conducting a background check lawfully, contact USAFact today!
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