March 1, 2023

The California Senate has passed the Fair Chance Act of 2023, which addresses conviction histories. The bill would amend Government Code Sections 12960 and 12965, Civil Code Section 1786.16, add Government Code Article 1.1 (commencing with Section 12954.2), and repeal Government Code Section 12952. It contains four primary sections. The first addresses severe findings and declarations reported by formerly incarcerated individuals seeking jobs. It also includes some common violations these individuals faced.

Section 2 would amend Civil Code Section 1786. Specifically, it addresses the civil code concerning investigative consumer reports. Section 3 would repeal Government Code Section 12952. This section would remove the restrictions on what employers can do with an applicant’s conviction history. Section 4 would add Article 1.1. (commencing with Section 12954.2) to Chapter 6 of Part 2.8 of Division 3 of Title 2 of the Government Code. The Fair Chance Act of 2023 would become Article 1.1.

Section 5 intends to amend Government Code Section 12960, which would add a reference to Article 1 (commencing with Section 12954.2). Section 6 hopes to amend Government Code Section 12965 by adding a reference to Article 1 (commencing with Section 12954.2).

The law places several restrictions on when and how an employer can inquire about an applicant’s criminal history or conduct a conviction history background check. However, employers required by state or federal law can still inquire about criminal records.

But they would first have to make a conditional offer of employment. Employers must make a conditional offer of employment before conducting the background check. After receiving authorization to do so and deciding not to hire or promote the candidate, they must disclose whether the decision came based fully or partially on the individual’s criminal history. In this case, they must conduct an individualized assessment as the law prescribes.

After this, the employer must allow at least ten business days for the candidate to respond. Finally, should the applicant respond within the timeframe intending to dispute the report’s accuracy, the employer must allow an additional five business days to respond. 

If the applicant did supply additional information, the employer must conduct a second individualized assessment determining whether the conviction history has a direct and adverse relationship with the specific job’s duties. Finding a relevant relationship would justify the employer’s decision not to hire the applicant. However, should the employee provide correct information, the employer cannot dispute the truth and accuracy of the new information the applicant provides.  

Under the Act, it would be unlawful for employers to take adverse action against or discriminate against employees based on their arrest or conviction history. However, the Act allows an exception for adverse actions for applications for employment or promotion. It also makes it unlawful for employers to take adverse action or discriminate against employees in privileges, terms, or conditions of employment based on their conviction history or any arrests.

Employers must post a clear and conspicuous copy of this Act in English, Spanish, and any other language spoken by at least 10 percent of the employees. The additional languages pertain to the employees at the specific workplace, job site, or different location under the employer’s control and visited by applicants or employees. 

The employer must include in all advertisements or solicitations for applicants a statement about considering qualified applicants with conviction histories. The message must prove consistent with the Act and other federal, state, and local laws. 

The employer must also include specified information in a job posting, advertisement, or solicitation seeking applicants for employment. In addition, the Act requires this inclusion if the employer intends to perform a conviction history background check for employment purposes. Employers must also keep records, documents, and written assessments for four years.

This law could prove complicated for some employers due to its many requirements. The best way to ensure compliance is to partner with a background check company that you can trust. The right provider will help you remain up-to-date and compliant with all relevant local, state, and federal laws concerning background checks.

Ready to discover more about Pre-employ’s background checks? Speak to a Sales Rep today.

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