New background check requirements for California employers
- Sep 27, 2023
- 2 min read
Effective October 1, how you manage background checks changes, courtesy of the new Fair Chance Act.
What is the Fair Chance Act?
The Fair Chance Act prohibits you from asking about an applicant’s criminal background history until an offer of conditional employment is made. If you consider not hiring an applicant based on their criminal history, you now must conduct an assessment.
The assessment must consider if the position has a direct or adverse relationship with the specific job duties that justify denying the applicant the position. You must consider three factors: 1) the nature and gravity of the offense or conduct; 2) the time that has passed since offense or conduct and/or completion of the sentence; and 3) the nature of the job held or sought.
Upon completion of the assessment, the applicant is to be provided with a pre-adverse action notice and given the opportunity to respond.
What else changes October 1?
There is a broader definition of ‘applicant.’ This now includes employees who may undergo a background check in connection with a change in ownership, management, or policy or practice.
There is a broader definition of ‘employer’ to include anyone acting on behalf of the employer to review an applicant’s criminal history, including staffing agencies.
Job advertisements, applications, or materials cannot include language stating individuals with a criminal history will not be considered for employment.
Employers cannot consider voluntary information provided by the applicant prior to a conditional offer of employment when making a hiring decision.
There are now broader criteria of the assessment factors, pre-adverse notification period and evidence of rehabilitation and mitigating circumstances.
What is an employer to do? Consult with an HR consultant or attorney to help update your policy and practices.