A Look Inside California’s New Criminal Background Anti-Discrimination Measure: The Fair Chance Act – Part 3
In a previous article, we promised to provide a detailed look into the meaning and provisions of California’s Fair Chance Act. In this article about California’s New Criminal Background Anti-Discrimination Measure, we’re following through on some of those promises.
This law, which took effect in January 2018, imposed some new restrictions and clarifies or extended some old ones. We’re going to break down each of the law’s restrictions and obligations one by one to see what they really mean. First, let’s look at who the law covers.
Who is an employer under the Fair Chance Act?
For most employers, the answer is fairly simple. If you employ five or more people, consider yourself included in the Fair Chance Act’s (Criminal Background Anti-Discrimination Measure) coverage.
However, because of differences between the language of the Fair Chance Act and Chapter 4 of The Department of Fair Employment and Housing Act, of which the Fair Chance Act is a part, some employers may want to confirm their status with their attorneys.
When does the Fair Chance Act not apply?
The Fair Chance Act explicitly excludes some employment situations. Those exclusions are listed in subdivision (d) of the act. This subdivision identifies those instances in which an employer is allowed to ask about an individual’s criminal history.
Importantly, employers should be aware that these exclusions are limited to the position being filed and are not a blanket exemption for the entire employer category.
Here’s the text of the statute:
“This section [the Fair Chance Act] does not apply in any of the following circumstances:
- To a position for which a state or local agency is otherwise required by law to conduct a conviction history background check.
- To a position with a criminal justice agency, as defined in Section 13101 of the Penal Code.
- To a position as a Farm Labor Contractor, as described in Section 1685 of the Labor Code.
- To a position where an employer or agent thereof is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history. For purposes of this paragraph, federal law shall include rules or regulations promulgated by a self-regulatory organization as defined in Section 3(a)(26) of the Securities Exchange Act of 1934, as amended by 124 Stat. 1652 (Public Law 111-203), pursuant to the authority in Section 19(b) of the Securities Exchange Act of 1934, as amended by 124 Stat. 1652 (Public Law 111-203).”
In brief, subdivision (d) provides that when another law, rule or regulation requires that a background check or conviction history must be considered, an employer may comply with that requirement. In addition, applicants seeking to join a criminal justice agency may be investigated.
The meaning of subdivision (d) as it applies to farm labor contractors is less clear. Section 1685 of the Labor Code does not actually define a farm labor contractor, that definition is found at Section 1682. Instead, Section 1685 permits farm labor contractors to screen applicants for supervisory positions by requiring them to affirmatively state (using a form prepared by the Labor Commissioner) that they have not been found to have committed sexual harassment by a court or administrative body. The licensing authority for farm labor contractors may also presumably inquire about sexual harassment related convictions before granting a license.
Yeah, it’s complicated.
A cautious interpretation of this provision would be that employers may ask a farm labor applicant who will hold a supervisory position to execute the form provided by the Labor Commissioner (and referenced in Section 1685) but otherwise, such employers are not exempt from the requirements of the Fair Chance Act.
We recommend that when in doubt, employers assume the law applies and let someone else bear the costs of litigating over the nuances. Likewise, employers should limit their investigations of applicants within any of the subdivision (d) categories to those that are specifically allowed by the law or regulation.
In addition to the exclusions found in subdivision (d), subdivision (f) of the Fair Chance defines the term “conviction history” to include certain arrests that did not result in a conviction, but only in very narrow circumstances.
Specifically, an employer may consider an arrest as part of an individual’s conviction history if the individual’s trial for that arrest is pending. Arrests related to certain drug or sex offenses may also be considered when an employer at a health care facility is filling specified roles.
Determining your obligations under the Fair Chance Act
California’s Fair Chance Act was born out of a desire to allow every member of society to have a chance at employment without being dragged down by past baggage. However,
Not all jobs are suited for every individual. In some cases, state and federal laws or regulations will trump the act’s good intentions.
For most employers, their responsibilities and obligations under the Fair Chance Act are clear. We expect to see further clarification of any ambiguities in the act’s meaning and coverage as time progresses. We’ll keep you posted.
And, as always, iprospectcheck is your partner in hiring and compliance. If you have any questions about your employment practices just give us a call. We’re happy to share our knowledge with you.