Complying with the Fair Chance Act

California’s Assembly Bill 1008, better known as the Fair Chance Act went into effect on January 1, 2018 and prohibits employers from asking about conviction history until after a job offer is made.  The law applies to all California employers with five or more employees.  California is serious about AB 1008.  To that effect, they have a detailed FAQ section on the website for the California Department of Fair Employment and Housing.

The law generally prohibits employers from:

 Including on a job application any questions about conviction history before a conditional job offer has been made

Asking about or considering your criminal history before a conditional job offer has been made

Considering information about arrests not followed by conviction, participation in pretrial or post trial diversion programs, or convictions that have been sealed, dismissed, expunged, or statutorily eradicated

The goal here that employers will have to use a case-by-case basis review process and consider all of the factors of the criminal conviction in the context of the job being sought.  For example, an applicant who was convicted of check fraud could be denied employment as a bank teller, since the nature of the position relates directly to the criminal conviction.  However, an applicant who was convicted of DUI more than ten years ago would not have any relevance in a customer service position in a shoe store.

If you decide that that the applicant’s criminal history does have bearing on the position being sought and you wish to withdraw your offer of employment, be sure to follow the steps laid out in AB 1008.  The employer must notify the applicant, in writing and state which conviction(s) were relied on, and attach a copy of the background check containing the conviction report.  At that point, the applicant has five business days to respond.  A response would generally be to claim the criminal record is not associated with the applicant, or argue why the conviction has no bearing on the position being sought.  If the applicant does not respond within the five business days, the withdrawal becomes final.  Once the decision is made final, the employer must send a second notice to the applicant that the employment offer has been withdrawn.

It would be wise for employers in California to review all of their hiring and applicant documents to ensure they are compliant with AB 1008 and do not ask any questions that would lead to the applicant disclosing a conviction, or any questions about information related to an applicant’s conviction until after the applicant is offered a position with your company.