Fair Chance Hiring in the Golden State: 10 “Best Practices” for Employers

California, both at the state and local level, has been a leader in the efforts to create greater economic opportunity for people with arrest and conviction records. The state recently enacted a new “ban the box” law that took effect January 1^st and extended fair chance hiring to nearly all public and private employers in the state. Fair chance policies benefit the roughly 8 million people with records in California, as well as employers seeking qualified workers, the overall economy, and public safety.

The analysis below surveys four different fair chance laws and regulations in California—The California Fair Chance Act (FCA), Fair Employment and Housing Council Regulations, and the San Francisco and Los Angeles Fair Chance Ordinances. By following the standards described below, employers will not only achieve more robust compliance with all four California laws, but also advance statewide best practices.

1. What Employers Are Covered?

 Best Practice: Assume Full Compliance Is Required.

In California, the vast majority of employers—both public and private—are required to fully comply with the state’s fair chance laws and regulations.[1] The FCA includes only limited exceptions, including employers that have fewer than five employees or when another law requires the employer to run a background check for the position being filled.[2]

2. What Types of Employment Relationships Are Covered?

 Best Practice: Extend Fair Chance Protections To All Types of Employment.

California’s fair chance policies, taken together, apply to virtually all employment relationships.[3] This includes temporary or seasonal work, part-time work, contracted work, contingent work, work on commission, work through the services of a temporary or other employment agency, and any vocational or educational training, with or without pay.

3. What Employment Decisions Are Covered?

Best Practice: Extend Fair Chance Protections To All Employment Decisions (Not Just Hiring).

While the FCA applies only to the hiring process, FEHC regulations and the San Francisco ordinance extend fair chance protections to other kinds of employment decisions as well.[4] These include decisions related to promotion, training, discipline, termination, and classification of employees.[5]

4. What Records Can Be Considered?

Best Practice: Only Consider Convictions (Not Arrests, Juvenile Offenses, or Other Records).

California state and local regulations collectively exclude employers from seeking or considering certain information, including: arrests that did not result in conviction, participation in diversion programs, convictions that have been sealed or expunged (“judicially dismissed”), juvenile court records, non-felony convictions for marijuana possession that are two or more years old, convictions more than seven years old, and minor infractions (i.e., a traffic violation).[6]

5. When Can Conviction History Be Considered?

Best Practice: In Hiring Decisions, Consider It Only After A Conditional Offer. In Other Employment Decisions, Consider Conviction History Only When It Has A Direct Relationship With Successful Job Performance.

California employers cannot ask about conviction history on job applications. Instead, they must wait until after they have extended a conditional job offer (i.e., a job offer that is contingent on clearing the background check) to consider past convictions.[7] A sample offer letter can be found here.

When California employers take into account an individual’s conviction history in other employment decisions—like promotion, training, termination, etc.—they have to first find that the background check policy is both “job related and consistent with business necessity.”[8] In other words, the employer must first establish that it needs to consider conviction history because that information has a direct relationship to the employee’s successful performance on the job and in the workplace.[9]

6. How Do Employers Lawfully Assess Conviction History?

Best Practice: Conduct An Individualized Assessment.

In the hiring context, employers must individually assess whether the job applicant’s conviction history has a direct and adverse relationship to the specific duties of the position before the employer can revoke the conditional offer of employment.[10] By law, the employer is required to consider all of the following factors as part of that individualized assessment:

• the nature and gravity of the offense or conduct;
• the time that has passed since the offense or conduct and completion of the sentence; and
• the nature of the position sought.

There is a similar process for other employment decisions. As noted, when an employer wants to consider conviction history for decisions like promotions, classifications, and so on, it must show that doing so is job related and consistent with business necessity. To satisfy that requirement, the employer is required to consider the same factors cited above.[11]

For helpful examples of individualized assessments, check out guidance from the Equal Employment Opportunity Commission, which encourages employers to consider the same factors in order to comply with federal civil rights law.[12]

7. What Due Process Is Required?

Best Practice: Communicate All Decisions In Writing & Provide Applicants With Ample Opportunity To Respond.

Read together, California state law and local regulations contain similar provisions to protect jobseekers and employees with conviction records.

First, the employer should provide written notice of the preliminary decision —whether it’s revoking a job offer or promotion, etc.—that includes a summary of the individualized assessment, a reference to the specific conviction that is the basis for the decision, along with a copy of the background check report.[13] Second, the employer must allow the individual at least five business days to challenge the accuracy of the record or provide evidence of rehabilitation or mitigating factors.[14] Third, after considering that additional information, the employer must provide written notice of the final decision, including information about the right to file a complaint with the relevant government agency.[15]

8. What Record Retention Policy Should Employers Adopt?

 Best Practice: Retain Pertinent Records For 3 Years.

All California employers should follow the ordinances of San Francisco and Los Angeles, which require employers to retain job applications, individualized assessments, and employment records for a period of three years. Those same ordinances require employers to share records with enforcing agencies in administrative enforcement proceedings.[16]

9. What Other Information Should Employers Provide?

Best Practice: Convey Compliance With Fair Chance Laws To Jobseekers & Employees.

To better inform the public, local ordinances in California require employers to (a) state, in all job postings, that they will lawfully consider individuals with a conviction history and (b) post a notice in the workplace that provides information about fair chance hiring laws.[17] For example, certain postings are required in San Francisco and Los Angeles.

10. What Exemptions Apply for Certain Positions?

Best Practice: Exceptions Only To Comply With Another Applicable Law.

In general, exemptions from California’s fair chance laws and regulations are few and far between.  They are usually limited to those positions and situations where an employer is required to follow another state or federal law requiring a criminal background check for employment, such as law enforcement positions, certain positions involving the financial industry, and certain positions involving the care of children and the elderly.[18]

[1] See California Fair Chance Act, Cal. Gov’t Code § 12952(a); California Code of Regulations, 2 CCR § 11008(d); San Francisco Fair Chance Ordinance, Section 4903; Los Angeles Ordinance, Section 189.01.

[2] Cal. Gov’t Code § 12952(a), (d).

[3] See 2 CCR § 11008(c); San Francisco Fair Chance Ordinance, Section 4903; Los Angeles Ordinance, Section 189.01.

[4] See generally Cal. Gov’t Code § 12952(a).

[5] See Fair Employment and Housing Council Regulations, Consideration of Criminal History In Employment Decisions, 2 CCR § 11017.1(a); San Francisco Fair Chance Ordinance, Section 4903.

[6] See generally Cal. Gov’t Code § 12952(a)(3); 2 CCR § 11017.1(b),(d); San Francisco Fair Chance Ordinance, Section 4904(a).

[7] Cal. Gov’t Code § 12952(a)(1).

[8] 2 CCR § 11017.1(e).

[9] See id.

[10] Cal. Gov’t Code § 12952(c).

[11] 2 CCR § 11017.1(e).

[12] Equal Employment Opportunity Commission, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII (2012).

[13] See Cal. Gov’t Code § 12952(c); 2 CCR § 11017.1(e)(2)(B); San Francisco Fair Chance Ordinance, Section 4904(g)-(i); Los Angeles Ordinance, Section 189.03(B).

[14] Id.

[15] Id.

[16] San Francisco Fair Chance Ordinance, Section 4910; Los Angeles Ordinance, Section 189.06.

[17] San Francisco Fair Chance Ordinance, Section 4905; Los Angeles Ordinance, Section 189.04.

[18] See generally Cal. Gov’t Code § 12952(d); 2 CCR § 11017.1(f); San Francisco Fair Chance Ordinance, Section 4916; Los Angeles Ordinance, Section 189.07.