September 2023: Updates In California Background Investigation Procedures

September 2023 Updates In California Background Investigation Procedures

In 2017, the California legislature passed the Fair Chance Act (Assembly Bill 1008), which prohibits employers from seeking information about a job applicant’s criminal conviction history until after a conditional job offer has been extended. Employers are permitted to revoke the offer if, after an individualized assessment, the applicant’s conviction history is found to have an adverse impact on the job in question.

In July 2023, the California Office of Administrative Law approved an amendment to the law, which adds greater detail to employers’ existing obligations. The basic steps of the hiring and background check process remain the same, but with a higher expectation for analysis and newly defined timelines for applicant notification. The changes become effective on October 1.

Pre-Offer Screening

The amended Fair Chance Act makes clear that employers are prohibited from inquiring into an applicant’s criminal history through application forms, background checks, or internet searches prior to making a conditional job offer. Employers also cannot attempt to pre-screen applicants by including qualifications in job announcements such as “Must have a clean record,” or “No felons.” Further, the amendments state that if an employer violates the prohibitions by asking about an applicant’s criminal conviction history prior to extending a job offer, the company may not use an applicant’s failure to disclose a conviction as a factor in any subsequent hiring decisions. This means, if you ask a candidate, “Do you think you’ll pass our background check?” and the applicant says he/she probably will, you cannot withhold a job offer just because the background check shows multiple charges that the applicant neglected to mention.

Initial Individualized Assessment

Current state law requires employers to analyze an applicant’s criminal conviction history to determine whether it justifies denying the applicant the position. We are instructed to consider the nature and gravity of the offense, the time that has passed since the offense occurred, and the nature of the job being sought. The amended law requires a reasoned, evidence-based determination and provides specific examples of factors to be considered. The California Civil Rights Department (CRD) provides a sample assessment form that may be used for this analysis.

Preliminary Notice and Applicant Response

Under current law, if an employer intends to revoke a job offer based solely or in part on the applicant’s criminal conviction history, we must notify the applicant of the preliminary decision and give him/her five business days to respond with additional information disputing the background check report or sharing information about rehabilitation or other mitigating circumstances. The amended law provides several specific examples of the evidence an applicant may provide and clarifies the minimum deadline for response as five business days from the receipt of notice. If notice has been sent through e-mail, it shall be deemed received two business days after it is sent. If notice is sent through postal mail, it is deemed received five calendar days after sending to California addresses, and ten calendar days after sending to non-California addresses. The CRD provides a sample Preliminary Decision Notice, available in both English and Spanish.

Reassessment and Final Decision

Employers are required to consider any information provided by the applicant before making a final decision regarding whether or not to revoke the job offer. While the legal requirements have not changed, the amended law provides examples of factors an employer may consider such as any community service, volunteer work, or educational efforts that may demonstrate rehabilitation and suitability for the job.

If the decision to revoke the offer remains final, the applicant must be notified in writing. The notice must include a statement that the applicant may contest the decision by filing a complaint with the Civil Rights Department. The CRD provides a sample Final Notice, available in both English and Spanish.

As always, Sierra HR Partners is here to help you navigate the ever-changing landscape of California regulations. Please contact us with any questions you have about your background investigation procedures and applicant notifications.