Employment defense attorneys have detected a discernable uptick on enforcement of the Fair Chance Act, (often called “Ban the Box”), a California law designed to reduce barriers to employment for individuals with criminal records. It is intended to ensure job applicants are evaluated based on their skills and qualifications, rather than their conviction history.

Who is Covered?

Employers with 5 or more employees, including staffing agencies and labor contractors.

What does FCA require you to do?

• Employers cannot ask about your conviction history on job applications.
• Employers cannot run background checks or ask about criminal history before making a conditional job offer.
• Job postings and advertisements cannot state that individuals with a criminal record will not be considered.

After a Conditional Job Offer

• An employer can ask for written permission to run a background check.
• Certain information cannot be considered, including arrests that did not lead to a conviction and records that have been sealed or expunged.
• If an employer wants to take back the job offer based on your record, they must perform an individualized assessment. They must consider the nature of the crime, how long ago it happened, and its relation to the specific job.
• If the job offer is rescinded, the employer must put the decision in writing, provide you with the background check report, and give you at least 5 business days to respond or provide evidence of rehabilitation.

What Does the California Civil Rights Department Do with FCA?

The CRD enforces this act by investigating complaints and ensuring employers comply with its provisions. Employers are prohibited from:

• Inquiring about criminal history on job applications.
• Using a criminal record to automatically reject candidates without considering individualized assessments that weigh the nature and relevance of the conviction.
• Retaliating against applicants or employees for asserting their rights under the act.

Enforcement Actions

If the CRD receives a complaint, it investigates to determine if an employer violated the law. Penalties can include fines and mandatory corrective actions, such as changing hiring policies or providing training on fair hiring practices.

Why Enforcement Matters

Enforcement by the CRD helps create equitable employment opportunities for people with criminal records, reducing recidivism and supporting community reintegration. It promotes fair hiring practices and combats unlawful discrimination, reinforcing California’s commitment to civil rights.

Compliance Resources

CRD furnishes resources, including a sample job placement adverstisement and compliant job application, a conditional offer letter, and other resources at Fair Chance Act: Guidance for California Employers and Job Applicants