Fair Chance Laws Spur Evolution of Hiring Practices in California

Thursday, February 22, 2018
Fair Chance Laws Spur Evolution of Hiring Practices in California

In Victor Hugo's "Les Miserables," Jean Valjean goes to prison for stealing bread to feed his sister’s children.

When he is finally released 19 years later, he is required to carry a yellow passport identifying him as a convict, all but guaranteeing he will have to continue to resort to crime to survive. Eventually, a bishop intervenes and Valjean becomes a leading citizen and, later mayor of the town.

In real life, second chances are now a matter of employment law if you employ 5 or more people in California – here's what you need to know.

Fair Chance Provisions Spreading

A growing number of state and local governments have enacted laws designed to give those with a criminal conviction an opportunity to compete in the job market.

California's Fair Chance Act, which went into effect January 1, expands that state's "Ban the Box" initiative to include private employers. Ban the Box makes it illegal to require applicants to disclose criminal convictions on job applications.

The law requires employers with at least five employees to judge applicants on their qualifications before any background checks are made. Only after a conditional offer is made can employers conduct a criminal background check, and the law imposes rules as to how they must proceed if a disqualifying conviction is discovered.

Among other provisions, the law requires employers to consider any convictions in light of the candidate’s age at the time of the offense as well as its relevance to the job.

The law establishes procedures for notifying applicants and providing them with an opportunity to respond.

Best Practices for Ensuring a Fair Chance

Employers subject to the law will have to develop a number of key practices to ensure compliance, according to the National Employment Law Project and other labor law experts:

  • The removal of self-disclosing questions about conviction history from the job application
  • Establishing internal policies to ensure compliance with notification and reporting provisions for cases in which a disqualifying conviction is discovered
  • Establishing procedures to provide applicants with a copy of their criminal background report, prior to any discussion of it
  • Establishing procedures for holding the position open until a review is complete and applicants are provided with an opportunity to explain the criminal charges and give evidence of rehabilitation
  • Consideration of how relevant the offense is to the job as well as how long ago the conviction occurred
  • California employers with employees in other states will need to consider those state’s provisions to determine if one uniform policy can be adopted

Get Help Keeping Up with the Changing HR Environment

SBS Payroll offers its clients a wide array of HR services, including access to live HR support. If you need advice for complying with Fair Chance statutes or keeping up with any other hiring and employment law issues, our HR support services can help. This includes crafting company policies, as well as tools for staying compliant with federal and state employment laws.


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