San Diego County Implements Its Own Fair Chance Ordinance

California has long been a leader in employment regulations aimed at protecting job applicants with criminal histories. Since 2018, the state's Fair Chance Act (CFCA) has placed significant restrictions on how employers can use criminal history when making hiring and employment decisions. Following the lead of cities like San Francisco and Los Angeles, San Diego County recently introduced its own Fair Chance Ordinance (FCO), which went into effect on October 10, 2024. This new ordinance applies to employers operating in unincorporated areas of the county, adding another layer of compliance for businesses in the region.

The California Fair Chance Act outlines specific guidelines that employers must follow when considering an applicant's criminal history. Some of its primary requirements include:

• Delayed Criminal History Inquiry: Employers cannot ask about or consider an applicant's criminal history until after a conditional job offer has been made. This includes running background checks or conducting searches to gather criminal history information.
• Ad-Free Job Postings: Employers must avoid mentioning in job advertisements that individuals with a criminal history are unwelcome to apply.
• Handling Voluntary Information: If an applicant discloses their criminal history before a job offer is made, employers must disregard this information until later in the hiring process.
• Individualized Assessments: Before denying an applicant due to their criminal record, employers must conduct a thorough, personalized evaluation of the specific offense, considering factors like the nature of the crime and any underlying circumstances, such as trauma or coercion.
• Two-Step Notice Process: Employers are required to follow a notification process that includes a preliminary determination and a final determination when deciding against hiring based on criminal history. This process is distinct from, but similar to, the Fair Credit Reporting Act (FCRA) guidelines.

Additionally, the regulations specify deadlines for applicants to respond to notices based on the method of delivery. For example, an applicant has five business days to respond if the notice is received via email, with different timelines for mailed notices depending on the location.

The CFCA does allow for some narrow exceptions, such as employers who must conduct criminal background checks due to state, federal, or local legal requirements.

San Diego County's Fair Chance Ordinance largely aligns with the CFCA but introduces a few notable distinctions that employers should be aware of:

• Application to Remote Workers: Unlike some other ordinances, the San Diego FCO specifically includes remote workers, meaning that employers must consider compliance even for employees working outside of traditional office settings.
• Written Individualized Assessment: The ordinance requires employers to perform an individualized assessment in writing, although they are not obligated to provide this written evaluation to the applicant. This requirement differs from the ordinances in Los Angeles County and the City of Los Angeles, where the written assessment must be shared with the applicant.
• Additional Notice Requirements: Employers must inform applicants of their right to file a complaint with both the California Civil Rights Department (CRD) and the San Diego Office of Labor Standards and Enforcement (OLSE). This is a new obligation for employers within San Diego County, supplementing the standard CRD complaint information.
• Position Availability During Review: Employers are expected to keep the position open during the assessment period unless urgent circumstances require immediate action.
• Record Retention: Employers must retain records related to the application and hiring process for a minimum of one year.
• No Private Right of Action: Although individuals cannot bring a private lawsuit under the San Diego FCO, starting July 1, 2025, employers may face civil penalties ranging from $5,000 to $20,000 for non-compliance.

For employers operating in unincorporated areas of San Diego County, compliance with the Fair Chance Ordinance means revisiting their hiring practices, particularly those involving background checks. It’s a good time to evaluate current procedures for criminal history screening to ensure they meet both the local and state-level requirements.

Given that both San Diego and Los Angeles counties now have their own fair chance ordinances, employers across Southern California should consider a comprehensive review of their employment policies. This includes scrutinizing job postings, offer letters, and the procedures used for pre-adverse and adverse action notices. Employers are encouraged to work closely with legal counsel to navigate these regulations and make the necessary adjustments to ensure their hiring processes are in full compliance.

DISA Global Solutions is here to support your business with comprehensive compliance services tailored to the evolving landscape of Fair Chance ordinances, including San Diego County's Fair Chance Ordinance. We help streamline your hiring process by offering reliable background screening solutions that comply with federal, state, and local regulations. Our team of experts stays updated on legislative changes to ensure your practices meet the latest requirements. With our tools and guidance, you can confidently manage individualized assessments, maintain accurate documentation, and provide compliant notices to applicants, ensuring a fair and legally sound hiring process. Let DISA be your partner in fostering an inclusive workplace while minimizing legal risks and maximizing compliance.

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Founded in 1986, DISA is the industry-leading provider of employee screening and compliance services. Headquartered in Houston, with more than 35 offices throughout North America and Europe, 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.