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How California’s Fair Chance Act Affects Your Hiring Practices


California employers, does your job application form ask prospects if they have been arrested or convicted of a crime?

If so, it may be you who is breaking the law. A new law took effect on January 1, 2018, that prohibits employers from asking about or considering several types of information related to an applicant’s criminal history. If you haven’t recently updated your hiring policies and procedures, you could be putting your company at risk.

Has California’s laws regarding hiring practices changed in the past 12 months? Yes, a lot.

Beyond Ban the Box: California Tells Employers Don’t Ask About Applicant’s Criminal Background

  • Fair Chance hiring Act California contains several different restrictions and obligations that employers should be aware of.
  • Has your organization taken steps to ensure that you are in compliance?
  • Does your job application form ask prospects if they have been arrested or convicted of a crime?
  • This is an intro to 7 articles about California’s Fair Chance Act – Ban the Box

New Anti-discrimination Efforts are Aimed at Protecting Those with Criminal Histories

In the past several years, there has been a growing shift toward protecting those with criminal histories, including arrests and convictions, from discrimination in the hiring process. As part of that effort, California and 29 other states have passed what are known as Ban the Box laws. These laws prohibit an employer from including questions about an applicant’s criminal background on their standard job applications.

In short, the traditional “Have you ever been arrested or convicted of a crime” question with a yes or no box beside it has been banned.

The Effort Goes Beyond Just Banning a Single Question on an Application.

More recent laws, including Fair Chance Act California, also prohibit employers from considering certain information altogether. Additionally, these laws impose restrictions on how and when an employer may use an applicant’s conviction history when considering his or her candidacy for a job. You might call this the law’s “don’t even think about it” provision.

While a conviction history may still be used as a basis to rescind an offer, employers must go through a multi-step process before doing so. A “no take-backs” provision?

Certain information cannot be used against an applicant to justify denial of employment, and an applicant’s conviction history must be individually assessed.

Does this mean that criminal convictions are completely off the table when making employment decisions?

Not completely. The Fair Chance Act California includes some exemptions to the rules. After all, competing federal and state laws and regulations often require a criminal background check or prohibit individuals with criminal convictions from holding specific jobs. The law makes exceptions for a few specific job types and for those instances when background checks are required by law or regulation.

For most employers, lawful hiring in the state of California now requires knowing when not to ask or even think about an applicant’s criminal history and how to properly consider a conditional hire’s conviction history.

What Should Employers do to Comply with California’s Fair Chance Act?

Your compliance should begin today. You should start by contacting your legal advisor to discuss your rights and obligations under the new law. Then, if you are an employer with 5 or more employees operating in the state of California and don’t qualify for an exception to the law,

  1. Check your application forms now. Make sure that your printed and online materials ask no questions regarding an applicant’s criminal history or arrest record.
  2. Remove any language from your forms requiring the applicant to grant you permission to ask or investigate or waive any right concerning a criminal investigation.
  3. Make sure your third-party background check company understands the law’s requirements and is prepared to help you comply.

Stay Tuned, To Learn More About Fair Chance Act California

As a compliance-focused background screening company, iprospectcheck is dedicated to helping you deploy best practices for all of your hiring decisions.

To help keep you informed, we’re going to share what we’ve learned about each of the provisions of the Fair Chance Act with you over the next several weeks. We’ll examine which employers and applicants are covered by the law, what employers need to do to stay in compliance, and why legislation of this type are gaining traction across the nation.

We hope you’ll visit us again soon to find out what else you need to know about the Ban the Box movement and the Fair Chance Act California

Know Before You Hire

About the Author
Matthew J. Rodgers

Matthew J. Rodgers

Matthew J. Rodgers is a highly accomplished business executive with over 30 years of experience providing strategic vision and leadership to companies ranging from the fortune 500 to iprospectcheck, a company which he co-founded over a decade ago. Matthew is a valued consultant who is dedicated to helping companies create and implement efficient, cost effective and compliant employment screening programs. Matt has been a member of the Professional Background Screeners Association since 2009 . When not focused on iprospectcheck, he can be found spending time with his family, fly fishing, or occasionally running the wild rivers of the American west. A lifetime member of American Whitewater, Matt is passionate about protecting and restoring America’s whitewater rivers.