The State of California has recently made some Fair Chance Act amendments, which adjusted the state's background check procedures. The California background check changes took effect on October 1, 2023, and are designed to redefine and clarify existing obligations for employers. Additionally, the changes expanded coverage under the law and detailed the process for considering a person's conviction history during employment decisions.
To remain compliant, employers need to become familiar with the California background check changes 2023 has brought. A company may fail to meet its obligations under the new rules without a clear understanding of these changes. That could lead to severe problems for the company and make it more difficult for someone with a conviction history to gain employment.
What Changed Under the Law?
In the past, the Fair Chance Act required employers to make a conditional offer of employment before asking about their criminal history. A job-related assessment that was individualized for the candidate and the job at hand also had to be conducted before an applicant could be rejected based on their criminal history.
Along with those requirements, a two-step notification process was followed if any action was taken based on an applicant's criminal history, similar to the kind of notice provided under the Fair Credit Reporting Act. This notice had to be provided even if an FCRA consumer report wasn't used to discover the criminal past—an internet search or applicant's self-disclosure still qualified under the law and required the notice.
Now, there are Fair Chance Act amendments that have taken effect. The California background check changes in 2023 mean that the protections surrounding not considering criminal history until after a conditional offer of employment now extend to employees being promoted, trained, or disciplined. If there is a change in policy or ownership, the new rule also applies.
Job advertisements cannot state that a person with a criminal history won't be considered for employment. An employer can't use self-disclosure information about criminal history to make a decision on employment until after a conditional offer has been made. In other words, if an applicant self-discloses a criminal past in an interview, that knowledge must be put aside when determining whether to offer employment.
Are There Exceptions to the Rule?
There are a few exceptions to the California employer background check obligations and requirements. For example, some employers are legally required to conduct a criminal background check. In these cases, an exception is made so employers can quickly disqualify someone who wouldn't pass the criminal history requirements of the job they're considering.
It's important to note that some background check requirements aren't based on what the employer may want to require but on a licensing board or other entity and the regulations it has for an industry. If the law doesn't require the employer themselves to conduct the background check, the exception doesn't apply to that position. It's essential to be clear on that distinction not to violate California Civil Rights Council regulations.
Do the Reasons Behind the Offense Matter?
As part of the California background check changes 2023 ushered in, employers must adjust how they handle the California pre-adverse action process. Before, they could discover the criminal record and send an FCRA pre-adverse action notice. Now, they have to conduct an initial, individualized assessment and then send a notice of preliminary decision. That requires them to have more contact with the applicant instead of just disqualifying based on a background check.
Additionally, employers should consider the causes or reasons behind the criminal history. How long ago the offense took place and the circumstances surrounding it matter, and new regulations provide many examples of rehabilitation and documentary evidence an employer needs to consider. An employer isn't allowed to ask for specific information, but they also can't refuse to consider any information the applicant provides.
So, What's the Bottom Line on Ban-the-Box Law Changes in California?
The bottom line on the amendments to background check procedures in California is that employers who don't follow the updated guidelines could face legal action. Working with an experienced attorney to ensure compliance in background screening processes is a good idea for every company that operates in the state.
Along with that, it's valuable for employers to keep an open mind when presented with information an applicant provides regarding their criminal history. Not only does that reduce the risk of potential legal problems for the business, but it also opens the door to helping companies find great employees.