California’s 2018 Fair Chance Act, also known as Assembly Bill 1008 (AB 1008), aimed to reduce employment discrimination against individuals with prior criminal records. The primary purpose of this legislation was to promote fair hiring practices and provide individuals with criminal histories a better opportunity to secure employment. Equally important objectives included the following:

  1. Ban the Box: The Fair Chance Act prohibited employers from asking about an applicant’s criminal history on a job application or conducting a background check until a conditional job offer had been extended. This “ban the box” policy was intended to ensure that job applicants with criminal records were not automatically disqualified from the hiring process solely due to their past convictions.
  2. Fair Consideration: Employers were encouraged to evaluate an applicant’s qualifications, skills, and experience before considering their criminal history. This approach aimed to give individuals a fair chance to compete for job opportunities based on their merits rather than their past mistakes.
  3. Reducing Employment Discrimination: The Act aimed to address the employment discrimination that many individuals with criminal records face, enabling them to rejoin the workforce and reduce the risk of recidivism.

By implementing these measures, California’s Fair Chance Act sought to provide a pathway for individuals with criminal records to find gainful employment and reintegrate into society, which can be crucial for their rehabilitation and reducing the cycle of reoffending.

As of October 1, 2023, a new version of the FCA became active and it is making California’s employers nervous with its updated definitions and comprehensive sub-factors. hiWle the act is a well-intentioned tool to reintegrate people back into the workforce, employers and even legal professionals are having trouble navigating the details.

What’s Changed?

The act broadens the definitions of “employer” as well as “applicant”. 

The definition of “employer” has broadened from: “a labor contractor and a client employer” to “any direct or joint employer, any entity that evaluates the applicant’s conviction history on behalf of an employer, or acts as an agent of an employer, directly or indirectly; any staffing agency; and any entity that selects, obtains, or is provided workers from a pool or availability list.”

The term “applicant” has been expanded to also include (1) existing employees who have applied for or indicated a specific desire to be considered for a different position with their current employer; and (2) existing employees who are subject to a review and consideration of criminal history because of a change in ownership, management, policy or practice.

Employers cannot ask about or indicate that a criminal history could affect an applicant’s chances for employment.

Employers are prohibited from including statements in job advertisements, postings, applications, or any related materials indicating that individuals with a criminal history will not be considered for employment. Even if an applicant willingly discloses information about their criminal history before receiving a conditional job offer, the new regulations state that employers still cannot take such information into account.

What if there is a relevant criminal history and further review is necessary?

Let’s say that after the interview, an employer extends an offer of employment in writing to the applicant. The background check is initiated and it reveals a criminal conviction that involves the applicant. The employer determines the criminal conviction/s to be serious enough to issue a pre-adverse action notification while reviewing the conviction. Some experts suggest the employer adds a step here before issuing the pre-adverse notice. The reason they suggest this is because of the specific sub-factors (see below) that employers must, at a minimum, consider as part of the personalized assessment before making any adverse decisions. However, it would be extremely difficult to consider the sub-factors listed without having more information about the circumstances surrounding the criminal conviction. This is where it gets especially tricky for employers (See numbers six and seven) as they can’t specifically ask questions about mental impairment or past addictions, etc. Yet the employer is obligated to take these factors into consideration.

What the employer can do is discuss the criminal case findings with the applicant and allow them to provide details so the employer has all the data possible to make an informed decision. The employer cannot, however, require that the applicant provide that information. Applicants have the discretion to decide what information, if any, they want to share. Any information the applicant does provide must be taken into consideration. Now the employer can look more closely at each sub-factor to be considered.

Sub-factors that the California employer must consider when a conviction is being reviewed:

  1. The individual’s specific actions that led to the conviction.
  2. Whether the harm inflicted was directed towards property or people.
  3. The extent of the harm, such as the value of property loss in theft cases.
  4. The lasting impact of the harm caused.
  5. The circumstances surrounding the offense.
  6. Whether any disability, including past drug addiction or mental impairment, contributed to the offense and if reasonable accommodation could mitigate or eliminate potential harm from similar conduct, or if the disability has been alleviated through treatment or other means.
  7. Whether factors like trauma, domestic or dating violence, sexual assault, stalking, human trafficking, duress, or similar elements played a role in the offense.
  8. The age of the individual at the time of the conduct.
  9. The duration since the occurrence of the conduct underlying the conviction, which may significantly precede the conviction date.
  10. In cases where the conviction led to incarceration, the period since the individual’s release from incarceration.
  11. The specific job responsibilities.
  12. Whether the context of the conviction is likely to arise in the workplace.
  13. Whether the type or severity of harm resulting from the conviction is likely to occur in the workplace.
  14. Any additional mitigating circumstances to be considered.

Moving Forward with a Pre-adverse Action Notification

If the employer moves forward with a pre-adverse action notification, they are required to wait at least five business days after the individual receives the notice before finalizing a decision. It is also recommended that the employer continues to accept and consider any additional information provided by the applicant during the period between the pre-adverse and adverse action notifications. In cases where an employer cannot confirm the date of receipt by the applicant, the waiting period is as follows. Two business days for email. Five calendar days for mailing to a California address. Ten calendar days for mailing to an address elsewhere in the United States. Twenty calendar days for mailing outside of the United States.

What is the role of your CRA? (Background Screening Agency)

While we cannot speak on behalf of other background screening agencies, at SafeScreener, we follow the regulations of the Federal Fair Credit Reporting Act as well as the consumer protection laws of each state, including California. In doing so…

  • We do not report non-convictions, expunged cases, or other criminal convictions that are not reportable by California FCRA guidelines.
  • We always advise our clients to utilize pre-adverse action notifications if any part of the consumer report may affect the employment status of the applicant or employee
  • The broadened definition of an applicant does not impact our process as any action of conducting a new or recurring background check in SafeScreener requires a new authorization and disclosure to be completed by the applicant regardless of the employee being a new or existing employee.
  • Our authorization and disclosure forms do not request information from the applicant regarding arrests or convictions.

Have questions? We’re here to help! Contact Brad Jones at 888-578-8600 x113 with questions on this topic or background screening services for your business. Please note: This post is for educational purposes only. Brad Jones and the team at SafeScreener are not lawyers and do not provide legal advice. Always seek guidance from a legal professional when creating or updating your hiring or applicant screening policies.