The California Department of Fair Employment and Housing (“DFEH”) recently released Frequently Asked Questions (“FAQ”) for California’s Fair Chance Act. The Fair Chance Act, commonly referred to as California’s “ban the box” law, imposes restrictions on when and how employers may inquire about and consider an applicant’s criminal history, including prohibiting employers with five or more employees from asking about an applicant’s criminal history until after a conditional offer of employment has been made. The FAQ provides guidance on the Fair Chance Act and includes questions addressing how the law works, which employers are subject to the law, and the requirements that employers must follow in order to inquire about an applicant’s criminal history and make employment decisions based on that information.
In another development concerning the Fair Chance Act, California’s Fair Employment and Housing Council have updated regulations governing criminal background checks. The amended regulations, which were effective on October 1, 2020, incorporate the requirements of the Fair Chance Act into existing regulations addressing the consideration of criminal history in employment decisions. The new regulations expand the definition of “applicant” to include individuals who are conditionally offered employment but begin working while an employer undertakes a post-offer consideration of the individual’s criminal history; the regulations explicitly state that “[a]n employer cannot evade the requirements” of the Fair Chance Act or the regulations by treating an individual as having lost their status as an “applicant” by allowing them to begin working before the employer has completed its post-offer review of the applicant’s criminal history. Other changes to the regulations include: expanding the scope of the Fair Chance Act by requiring that labor contractors and union hiring halls comply with the regulations when selecting workers for inclusion in pool or availability lists; requiring client employers to comply with the regulations when selecting workers supplied by labor contractors and union hiring halls; and specifying that while employers must not consider an applicant’s referral to or participation in a diversion program when making hiring decisions, employers may consider the programs as evidence of rehabilitation or mitigating circumstances after a conditional offer of employment has been made if offered as such by an applicant. The regulations also highlight that employers may be subject to local laws or ordinances that impose additional limitations.
Jackson Lewis continues to track administrative updates pertaining to employers. If you have a question about this or related administrative developments contact a Jackson Lewis attorney to discuss.