California Fair Chance Act Compliance Update

Criminal record

Understanding California's Fair Chance Act (FCA) Compliance in 2023
As of October 1, 2023, significant changes to California's Fair Chance Act (FCA) compliance have taken effect, impacting both employers and job applicants. This act is designed to provide individuals with criminal histories a fair chance of employment. Morgan Reynolds, VP of Risk and Legal Council, DISA Global Solutions, presented a webinar to discuss the new compliance update. Here's a closer look at what he discussed and what you need to know about California FCA compliance changes.

Existing California FCA Compliance (Before October 1, 2023)
Prior to these changes, employers in California were required to wait until after making a conditional offer of employment before inquiring about an applicant's criminal history. After learning about an applicant's conviction, employers would conduct an individualized assessment to determine if the conviction directly relates to the job's specific duties and justifies denying the applicant the position. If a conviction history might result in an adverse employment action, the employer must notify the applicant. After giving the applicant time to respond, and upon finalizing the decision, the employer must provide another notice, including any existing procedures to challenge the decision. These notices were required, even if the employer does not order criminal background check reports from a Consumer Reporting Agency, and they are different from FCRA requirements.

New California FCA Compliance Updates (Effective October 1, 2023)
On July 24, 2023, the Office of Administrative Law approved the California Civil Rights Council's proposed modifications to FCA regulations, effective October 1, 2023. These changes expand the scope of the FCA in several ways:

  • Criminal History Requests and Usage
    Employers must now wait until after making a conditional offer of employment for current employees in decisions related to promotion, training, discipline, layoff, or termination. The definition of an "applicant" now includes existing employees who are subject to a review of their criminal history due to changes in ownership, management, policy, or practice.
  • Initial Individualized Assessment 
    Employers must conduct an initial individualized assessment before sending notice of a preliminary decision. The new regulations redefine and expand the scope of the initial assessment, listing subfactors to consider during adjudication.
  • Preliminary Notice/Pre-Adverse Action
    Employers must provide a preliminary notice of potentially disqualifying criminal history, along with a copy of the report, and allow applicants or employees at least five business days to respond. The new regulations dictate that employers must either send the letter with a delivery receipt method or wait a specific number of days before assuming receipt.
  • Other Restrictions/Requirements
    Employers cannot indicate in job advertisements or postings that individuals with criminal histories will not be considered. If an applicant voluntarily provides information about their criminal history before receiving a conditional offer, the employer cannot consider it until after making a conditional offer of employment.

What Does This Mean for Employers? 

These changes in California FCA compliance present a challenging balancing act for employers. On one hand, employers must tread carefully to avoid potential legal issues and accusations of discrimination based on criminal history. On the other hand, they need access to information to ensure they're making safe hiring decisions. Staying informed about these changes and complying with them is essential for employers in California. Navigating the nuances of California's Fair Chance Act ensures fair and legal hiring practices while giving individuals with criminal histories an opportunity for gainful employment.

DISA Global Solutions is your trusted partner in navigating the latest California Fair Chance Act (FCA) updates. Our expertise ensures that your organization remains fully compliant with new regulations. By leveraging our services, you can confidently conduct individualized assessments and meet the heightened requirements of this legislation. We streamline the process, allowing you to focus on making informed, fair, and legally sound hiring decisions while we handle the intricacies of background checks and compliance. Partner with DISA to safeguard your company's reputation and maintain a secure hiring process in accordance with the California FCA and other relevant laws.

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  • About DISA Global Solutions 
  • Founded in 1986, DISA is the industry-leading provider of employee screening and compliance services. Headquartered in Houston, with more than 35 offices throughout the U.S. and Canada, DISA’s comprehensive scope of services includes drug and alcohol testing, background screening, occupational health, and transportation compliance. DISA assists employers in making informed staffing decisions while building a culture of safety in their workplace.

DISA Global Solutions aims to provide accurate and informative content for educational purposes only and does not constitute legal advice. The reader retains full responsibility for the use of the information contained herein. Always consult with a professional or legal expert.