Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Existing California law regulates inquiries into and the use of criminal history information in hiring and personnel decisions. Existing California law also substantially impedes the ability of employers (and background check companies) to obtain such information from public records. The existing restrictions, however, pale in comparison to draconian restrictions proposed earlier this year. On February 17, 2023, two state senators introduced Senate Bill 809 (SB 809) to replace one of the primary California laws with the “Fair Chance Act of 2023.”1 SB 809 is currently pending review by the Senate Judiciary Committee, and contains eight sections, the primary ones summarized below. Because the bill seeks to outright ban criminal background checks by most private sector employers, employers should monitor the progress of this bill in Sacramento.
The Proposed Changes
Section 1 would set forth legislative findings and declarations in support of SB 809. The thrust of Section 1 is that the bill is intended to help millions of people in California that have a criminal record get a job.
Section 2 would amend California’s version of the federal Fair Credit Reporting Act (FCRA), the California Investigative Consumer Reporting Agencies Act (ICRAA), to require even greater transparency and specificity by employers seeking criminal history information for hiring and personnel decisions. Job applicants would be entitled to a disclosure that includes, among other things, either: (1) all the specific job duties of the position for which a conviction may have a direct and adverse relationship that has the potential to result in an adverse employment action;2 or (2) all applicable laws and regulations that prohibit or restrict the hiring or employment on the basis of a conviction (e.g., for banks, insurance companies, etc.).
Sections 3 and 4 would repeal the existing fair chance act and replace it with the Fair Chance Act of 2023.
Section 12954.2.02 would state that, except as otherwise allowed by the statute, it would be an unlawful employment practice for any employer to do any of the following even after extending a conditional job offer:
- Declare, print, or circulate, or cause the declaration, printing, or circulation of, any solicitation, advertisement, or publication for employment or promotion that states any limitation or specification regarding conviction history.
- Include on any application for employment or promotion, or directly or indirectly ask the applicant, any question that seeks the disclosure of an applicant’s conviction history.
- Inquire into, directly or indirectly ask the applicant, or consider the conviction history of the applicant, including any inquiry about conviction history on any employment or promotion application, with enumerated exceptions.
- End an interview, reject an application, or otherwise terminate the employment or promotion application process based on conviction history information provided by the applicant or learned from any other source.
- Make an adverse decision based on the applicant’s response, including denial of conviction history, to a question, inquiry, or voluntary disclosure regarding the applicant’s conviction history.
- Require self-disclosure of an applicant’s conviction history at the time of, or any time after, a conditional offer of employment or promotion.
- Require or request that an applicant share any personal social media.
- Inquire into, directly or indirectly ask the applicant, consider, distribute, or disseminate information about specifically enumerated data/information while conducting a conviction history background check in connection with any application for employment or promotion.
- Interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this article.
- Take adverse action on the basis of a delay in obtaining, or failure to obtain, any specified information.
Subject to the foregoing prohibitions, employers would be able to conduct a conviction history background check only where existing law restricts or prohibits hiring or employing persons with a criminal history. Even then, employers must defer inquiries into and consideration of such information until after extending a conditional job offer.
Section 12954.2.03 would provide that, when employers that are authorized to conduct a conviction history background check intend to deny an applicant a position or employment based solely or in part because of the applicant’s conviction history, the employer would have to perform an individualized assessment3 of whether the applicant’s conviction history has a direct and adverse relationship with one or more specific duties of the job that justifies denying the applicant the position.
An employer that makes the preliminary decision to disqualify an applicant from employment or promotion based solely or in part on the applicant’s conviction history would then have to notify the applicant of this preliminary decision, and its reasoning, in writing.4 Thereafter, the applicant would have at least 10 business days to respond to the notice before the employer could make its final decision. If, within the 10 business days, the applicant notifies the employer in writing that the applicant disputes the accuracy of the conviction history report that formed the basis for the preliminary decision to rescind the offer and that the applicant is taking specific steps to obtain evidence supporting that assertion, then the applicant would have 5 additional business days to respond to the notice.5
If an employer were to make a final decision to deny an application for employment or promotion solely or in part because of the applicant’s conviction history, the employer would have to notify the applicant of the final decision in writing.6
Section 12954.2.06 and 12954.2.07 would impose workplace posting and record retention requirements on employers.
Sections 12954.2.08 and 12954.2.09 would provide rules and regulations for imposing civil penalties when an employer violates provisions of this article.7 To impose civil penalties, the department would have to serve a written citation on the employer.
Section 12954.2.12. Remedies under this section would be in addition to all other rights and remedies, including any local ordinance, state, or federal law.8
While the sweeping bill’s future is uncertain, employers should be mindful of the bill’s progress given the drastic impact even a narrower version of the bill would have if enacted into law. These changes would more or less upend the ordinary hiring process for just about every employer in California.
1 SB 809 would amend Civil Code Section 1786.16, Government Code Sections 12960 and 12965, add Government Code Article 1.1 (commencing with Section 12964.2) to Chapter 6 of Part 2.8 of Division 3 of Title 2 of the Government Code, and repeal Government Code Section 12952.
2 The California Code of Regulations states that the standard for determining what constitutes a “direct and adverse relationship that justifies denying the applicant the position” must take into account at least the following factors: (a) the nature and gravity of the offense or conduct; (b) the time that has passed since the offense or conduct and/or completion of the sentence; and (c) the nature of the job held or sought.” Cal. Code Regs. tit. 2 11017.1, subdivs. (d)(1) and (g)(1).
3 The individualized assessment would have to consider: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense or conduct; and (3) the nature of the job sought. If the applicant is not currently incarcerated or has completed a sentence for the conviction of a crime, a rebuttable presumption would be established that there is no direct and adverse relationship between the applicant’s conviction and the position.
4 The written notification would have to contain the following: (1) notice of the disqualifying conviction(s) and the specific duty or duties forming the basis for the preliminary decision to rescind the offer; (2) a copy of the conviction history report or other source of the information; (3) the written individualized assessment stating the direct and adverse relationship between the applicant’s conviction history with the specific duties of the job; and (4) an explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final, and the deadline to respond.
5 If the applicant were to submit additional information, the employer would be required to conduct a second individualized assessment considering whether the conviction history has a direct and adverse relationship with specific duties of the job before making a final decision. The employer would be required to assume the truth and accuracy of the information submitted, unless it were substantially inconsistent with other information obtained.
6 The final notice would have to contain: (1) the final denial or disqualification, including the employer’s reasoning; (2) any existing procedure the employer has for the applicant to challenge the decision or request consideration; and (3) the right to file a complaint with the department.
7 Civil penalties would be collected by the department and deposited into the newly created Fair Chance Act Enforcement Fund, whereby 46% of the penalties would be used by the department to enforce this article, 4% of the penalties would be used to ensure the employer pays the civil penalties to the department, and 50% of the penalties would be used for purposes of making awards to the complainant(s). The amount of civil penalties imposed would vary depending on the number of employees and whether the violation is an initial violation, or subsequent violation.
8 See, e.g., Jennifer L. Mora, Rod Fliegel, Allen Lohse, and Christina Cila, City of Los Angeles Mayor to Sign Long-Awaited “Ban the Box” Law, Littler Insight (Dec. 9, 2016); Rod M. Fliegel, San Francisco’s OLSE Issues “FAQs” On Fair Chance Ordinance, Littler Insight (Dec. 17, 2014).