April 5, 2023

Earlier, the California legislature introduced Senate Bill 809, also known as the Fair Chance Act of 2023. If passed, this bill would replace existing restrictions on using consumer reports on hiring. It would also ban criminal background checks in most hiring decisions.

Senators Lola Smallwood-Cuevas and Aisha Wahab introduced SB 809 to the state Senate in February 2023. They hoped to amend several areas of existing law, such as Civil Code Section 1786.16 and Government Code Sections 12960 and 12965. It would also add Government Code Article 1.1, beginning with Section 12954.2, and repeal Government Code Section 12952.

Section 1 of this bill outlines legislative findings and declarations concerning existing laws. For example, laws like the Fair Chance Act have failed to prevent discrimination against the formerly incarcerated. Furthermore, they failed to hold violators of these regulations accountable. As a result, formerly incarcerated individuals face worse employment prospects, working conditions, and earning potential. This section states that this bill intends to address these challenges. It would ultimately help those with a criminal record find gainful employment.

Section 2 of the Act would amend the California Investigative Consumer Reporting Agencies Act (ICRAA) to create even greater transparency requirements. Furthermore, it would amend how employers could use criminal history information when making employment decisions. The Act would also require employers to provide a disclosure to job applicants. The disclosure must contain several elements, including the following:

• The specific job duties for the position for which a criminal conviction could have a direct and adverse relationship that may result in adverse employment action as described in subdivision (c) of the Government Code Section 12954.2.06.
• All applicable laws and regulations that would prevent employment in the position based on a conviction.

Sections 3 and 4 of the bill would repeal the state’s existing Fair Chance Act. In its place, the bill would institute the Fair Chance Act of 2023. This change would recast and strengthen the already considerable protections applicants and employees possess under the existing Fair Chance requirements.

SB 809 would introduce several more notable requirements. One example includes adding Section 12954.2.02 to Chapter 6 of the Government Code. This section would make the following acts unlawful even after a conditional offer of employment:

1. “Declare, print, or circulate, or cause the declaration, printing, or circulation of, any solicitation, advertisement, or publication for employment or promotion that states any limitation or specification regarding conviction history, even without adverse action against the individual seeking employment or promotion. Examples include, but are not limited to, advertisements and employment applications containing phrases such as ‘no felonies,’ ‘background check required,’ and ‘must have a clean record.’
2. Include on any application for employment or promotion, or directly or indirectly ask the applicant any question that seeks the disclosure of an applicant’s conviction history.
3. Inquire into, directly or indirectly ask the applicant, or consider the applicant’s conviction history, including any inquiry about conviction history on any employment or promotion application, except as provided in subdivision (b).
4. (A) End an interview, reject an application, or otherwise terminate the employment or promotion application process based on conviction history information provided by the applicant or learned from any other source.
5. (B) An applicant who volunteers conviction history information shall receive immediate written notification by the employer of their rights not to disclose conviction history information under this article. An employer shall disregard conviction history information learned about the applicant and take reasonable steps to prevent further disclosure or dissemination of the applicant’s conviction history.
6. Make an adverse decision based on the applicant’s response, including denial of conviction history, to a question, inquiry, or voluntary disclosure regarding the applicant’s conviction history in paragraphs (2) to (4), inclusive.
7. Require self-disclosure of an applicant’s conviction history at the time of, or any time after, a conditional offer of employment or promotion.
8. Require or request that an applicant share any personal social media. The employer shall not inquire into, consider, distribute, disseminate, obtain, or use any arrest or conviction history information from social media, the Internet, or any other source.
9. Inquire into, directly or indirectly ask the applicant, consider, distribute, or disseminate information about any of the following while conducting a conviction history background check in connection with any application for employment or promotion:
   1. Arrest not followed by conviction, except in the circumstances as permitted in paragraph (1) of subdivision (a) and subdivision (f) of Section 432.7 of the Labor Code.
   2. Referral to or participate in a pretrial or post trial diversion program.
   3. Sealed, dismissed, expunged, or statutorily eradicated convictions according to law or any conviction for which the convicted person has received a full pardon or a certificate of rehabilitation.
10. To interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this article.
11. Take adverse action based on a delay in obtaining, or failure to obtain, any information described in subdivision (b).”

The above conditions would allow employers to conduct criminal background checks despite restrictions or bans. However, these cases do not permit employers to inquire about an applicant’s criminal history until they make a conditional offer of employment.

This bill has not yet passed, but regardless employers should prepare to comply with it should it pass. Laws regarding background checks frequently change, making it challenging for employers to stay compliant. The best way to ensure compliance with these laws is to partner with a background check company you trust to keep up-to-date with all relevant laws.

Keep your business up to date on new laws and regulations with Pre-employ’s free news resources. Contact a sales rep today.

Source