What to Know About California’s Updated Fair Chance Act

October 10, 2023

As of October 1, 2023, California has implemented regulations concerning applicants’ and employees’ criminal background checks. According to the changes, employers must perform a more comprehensive analysis when conducting background checks. 

Introduced Factors

The process also introduced more evaluation factors for employers to consider before making an adverse employment decision. Employers must now include the following in their evaluation:

  • “The nature and gravity of the offense or conduct; consideration of this factor may include but is not limited to: 
    • The specific personal conduct of the applicant that resulted in the conviction; 
    • Whether the harm was to property or people; 
    • The degree of the harm (e.g., amount of loss in theft); 
    • The permanence of the harm; 
    • The context in which the offense occurred; 
    • Whether a disability, including but not limited to a past drug addiction or mental impairment, contributed to the offense or conduct, and if so, whether the likelihood of harm arising from similar conduct could be sufficiently mitigated or eliminated by a reasonable accommodation, or whether the disability has been mitigated or eliminated by treatment or otherwise;
    • Whether trauma, domestic or dating violence, sexual assault, stalking, human trafficking, duress, or other similar factors contributed to the offense or conduct; and/or 
    • The age of the applicant when the conduct occurred.
  • The time that has passed since the offense or conduct and/or completion of the sentence; consideration of this factor may include but is not limited to:
    • The amount of time that has passed since the conduct underlying the conviction, which may significantly predate the conviction itself; and/or 
    • When the conviction led to incarceration, the amount of time that has passed since the applicant’s release from incarceration;
  • The nature of the job held or sought. Consideration of this factor may include but is not limited to: 
    • The specific duties of the job; 
    • Whether the context in which the conviction occurred is likely to arise in the workplace; and/or 
    • Whether the type or degree of harm that resulted from the conviction is likely to occur in the workplace.”

Further Changes

This law also changed the definition to “employer.” According to the changes, joint employers now qualify under California’s Fair Chance Act. These entities include businesses evaluating applicants’ criminal history for employers or as the employer’s agent. Other affected entities include staffing agencies and those that select, obtain, or provide workers from a pool or availability list. As such, California’s Fair Chance Act will apply to more businesses. 

These are not the only changes to California’s updated background check regulations. For example, employers must not advertise that they will not consider someone with a criminal background. This ban includes general advertisements, postings on job boards, or applications.

Furthermore, employers cannot consider an applicant’s criminal history before making a conditional job offer. This ban applies even when applicants voluntarily offer information. Violating the Act may end in severe penalties.

Such penalties include back pay, front pay, promotion, hiring or reinstatement, out-of-pocket expenses, and training. Failing to comply with the California Fair Chance Act and other employment laws can be very costly. The best way to comply with this and other employment laws is to partner with an experienced background check company.

Keep your business compliant with new laws and regulations with JDP’s reliable background checks. Contact a sales rep today.