In the realm of California’s employment regulations, evolution is the name of the game. As of October 1st, 2023, California employers are gearing up for a significant shift in their background check and criminal history review process, thanks to the updated Fair Chance Act (FCA) regulations. If you’re an employer in California, it’s time to prepare for these new compliance obligations that could reshape how you approach hiring and make a fairer job market for everyone.
A Glimpse Into The Fair Chance Act
To fully grasp the significance of these changes, let’s take a step back. The California Fair Chance Act originally took effect in 2018, aiming to level the playing field for job applicants with a criminal history. It laid down the law that employers couldn’t inquire about an applicant’s criminal history until after extending a conditional offer of employment. If an employer contemplated denying an applicant based on their criminal record, they were required to conduct an individualized assessment.
This assessment considered several key factors:
- The nature and gravity of the offense of conduct: How severe was the offense or conduct in question?
- Time passed since the offense: Consideration of how much time had elapsed since the offense or the completion of the sentence.
- Nature of the job: The specifics of the job itself - was it related to the applicant's past offense?
The Winds Of Change - Effective October 1st, 2023
However, the winds of change are blowing, and the FCA is evolving. As of October 1st, 2023, employers must adapt to several important amendments to the FCA.
Expanding the scope: The term “applicant” no longer solely applies to those actively seeking a job within a company. It now encompasses employees undergoing background checks during significant changes such as ownership, management transitions, or shifts in policy.
Broadening the definition: The term “employer” now encompasses not only direct employers but also those acting as agents or evaluating criminal histories on behalf of an employer. This includes staffing agencies and entities tapping into worker availability lists.
Advertisement restrictions: Employers are now forbidden from stating in job ads, postings, or applications that individuals with criminal histories won’t be considered for hire.
Voluntary disclosure: Even if an applicant voluntarily offers information about their criminal history before receiving a conditional offer, the new regulations emphasize that employers still cannot consider such information.
A Deeper Dive Into The Assessment Factors
The updated regulations provide a more extensive list of sub-factors that employers must consider as part of the individualized assessment. These factors include:
- Degree of harm caused
- Context of the offense
- Impact of disability or trauma
- Age of the applicant at the time of the offense
Requesting information
Recognizing that most of this information isn’t readily available, employers can request it from individuals with criminal histories. However, it’s crucial to note that you cannot require this information; it’s entirely voluntary.
The waiting period
After sending a pre-adverse action letter, employers must wait at least five business days before making a final decision. Be aware of varying timeframes based on the method of delivery.
Rehabilitation and mitigating circumstances
Under the FCA, employers must consider evidence of rehabilitation and mitigating circumstances. The new regulations outline a broad list of examples employers should consider, underscoring the importance of second chances.
Preparing For Change
As the clock ticks toward October 1st, California employers must prepare for these shifts in the FCA. Begin by revising your background check policies for compliance and ensuring all individuals involved in the applicant screening and background check process are educated about these changes.
These changes aren’t just about legal compliance; they represent a significant step towards a more inclusive and equitable job market. Embracing these shifts ensures you’re on the right side of the law and fosters a culture of fairness and opportunity in your workplace.
An Alternative Solution
In the evolving landscape of California’s employment regulations, adapting to the FCA updates is necessary for every conscientious employer. While the law sets forth essential guidelines for fair hiring practices, it also presents challenges in terms of compliance.
An alternative solution that businesses can consider, especially when dealing with the intricacies of background checks and criminal history assessments, is partnering with a professional employer organization (PEO). PEOs like GMS specialize in HR and employment-related matters, providing comprehensive support that includes navigating complex regulations, managing compliance, and streamlining the hiring process. Partnering with GMS allows business owners to ensure they meet the requirements of the FCA while focusing on their core operations, ultimately fostering a more inclusive and equitable workplace. Contact us today!