California’s Fair Chance Act – Part 2: Restrictions and Obligations
With the passage of the Fair Chance Act (formerly known as Assembly Bill 1008), California added a new paragraph to an already growing book of laws governing employment practices in the state. While previous California laws, regulations, and local ordinances have addressed some or all of the same issues covered by the Fair Chance Act, this new law consolidates and broadens the reach of those employer limitations
The Fair Chance Act Adds to California Employers’ Cornucopia of Employment Laws and Regulations.
- Has your organization taken steps to ensure that you are in compliance?
- The act contains several different restrictions and obligations that employers should be aware of.
- This article discusses the restrictions and obligations for California Employers
- This is 2 of 7 articles about California’s Fair Chance Act – Ban the Box
The Fair Chance Act imposes both restrictions and obligations on California employers
With limited exceptions, the law not only prohibits specific actions by employers but also imposes obligations on employers. Under the Fair Chance Act, in most circumstances, an employer may not ask about any criminal history such as arrests or diversion programs at any point during the hiring process.
Further, a person’s conviction history may only be considered after an offer of employment has been made. In effect, the statute says that an individual’s past is none of an employer’s business unless and until that employer has made a commitment to hire.
Finally, employers who don’t like what they see in a prospective hire’s conviction history must complete a statutorily prescribed process before rescinding the offer.
But the Fair Chance Act isn’t the only law California employers have to worry about when it comes to complying with anti-discrimination laws related to criminal histories.
Not by a long shot.
What other criminal history anti-discrimination laws may apply to California employers?
Despite its comprehensiveness, the Fair Chance Act does not replace or supersede most of California’s other related laws and ordinances.
For example, many employers in Los Angeles and San Francisco must still comply with the often more restrictive local ordinances within those jurisdictions. Additionally, employers must still comply with the California Fair Employment and Housing Council’s Consideration of Criminal History in Employment Decisions Regulations which became effective on July 1, 2017. Federal laws and guidelines are still in play, too.
The FEHC’s regulation was based on the U.S. Equal Employment Opportunity Commission’s 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records. That legislation requires employers to limit the use of criminal histories in making employment decisions when doing so would have a disparate impact on a protected class as defined by Title VII of the Civil Rights Act of 1946.
To further complicate matters, not every limitation applies to every employer. Some of these laws are limited by jurisdiction, others only apply to employers of a certain size. There are exceptions and carve-outs, case law and regulators’ statements of clarification to consider as well.
If you think all this seems a little complicated, you aren’t alone. California’s new Fair Chance Act by itself combines “a ban the box” provision with a “don’t even think about it” component and adds an individualized assessment for good measure. Adding in other federal, state, and local requirements creates lots of opportunities for error.
What can you do as an employer to avoid costly errors?
The best advice is to consult with your qualified legal counsel to determine which laws apply to you. And, when in doubt, comply with the most restrictive laws regarding criminal records and conviction histories.
In the meantime, make your team aware of the laws and the limitations and engage them in the compliance process. How?
- Review all of the laws and regulations governing your organization’s practices. But don’t stop there. Make sure you are receiving regular updates on labor and employment laws, too.
- keep compliance top of mind. Regularly create internal memos to communicate your organization’s legal obligations clearly to each individual involved in the recruitment and hiring process. From the HR team to the copywriter who prepares your job advertisements, everyone should understand their responsibilities.
- If you are a multi-jurisdictional employer, weigh the costs versus benefits of having uniform processes that comply with the most restrictive rules or creating jurisdictional-specific forms and policies.
- Finally, remember that as an employer, you are responsible for the actions of your team and any agent you authorize to act on your behalf. Regularly review your contracts and agreements with third-parties to ensure their compliance as well as your own.
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