Now is the time for California employers to review their background screening process to prepare for new Fair Chance Act regulations that take effect October 1. The California Fair Chance Act, which went into effect in 2018, prohibits employers from asking about an employee's criminal history until after a conditional employment offer has been provided to the applicant.
If an employer is considering not hiring an applicant because of their criminal history, the company must assess whether the applicant’s criminal history “has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.” If the answer is yes and the employer chooses to pursue adverse action, the employer must send the applicant a pre-adverse action letter with at least five business days to respond. If the employer reviews any new information provided by the applicant and decides not to hire the applicant, they must send an adverse action letter to the applicant. NCS helps with this process by providing templates for Pre-Adverse and Adverse Action Letters.
What Employers Should Know About the New Regulations:
- Expanded “Employee” Definition – Prior to the changes, the Fair Chance Act only applied to applicants or current employees seeking a position within the company. The term “applicant” now also includes an employee who undergoes a background check in connection with an ownership change, a management change, or a change in policy or practice.
- Expanded “Employer” Definition – “Employer” no longer means just direct employers but also entities acting as agents or evaluating an applicant’s criminal history on behalf of an employer, staffing agencies and entities obtaining workers from an availability list.
- Prohibited Advertising or Recruiting – Employers are prohibited from including statements in job advertisements, postings, applications or other materials that individuals with a criminal history will not be considered for hiring.
- Volunteered Information Cannot be Considered Before an Offer – If an applicant voluntarily provides information about their criminal history prior to receiving a conditional offer, the employer cannot consider that information when making hiring decisions.
- Revised Individualized Assessment – When conducting an applicant assessment, the following factors must be considered:
- The nature and gravity of the offense or conduct
- The amount of time that has passed since the offense and/or completion of the sentence
- The nature of the job the applicant is seeking
- Defined Applicant Response Time – The employer must wait at least five business days from the time the applicant receives the Pre-Adverse Action Letter before making a final hiring decision.
- Considered Rehabilitation Time – Under the Fair Chance Act, employers must consider the applicant’s rehabilitation time and evidence.
Ensure your hiring process aligns with legal compliance and ethical practices. Trust in National Crime Search's comprehensive pre-employment screening services, including criminal background searches, employment verification, education verification, and much more. Contact us today to discover how we can support your organization in creating a fair and responsible recruitment process.
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