Game Changing! The CRD Steps Up Fair Chance Act Scrutiny

California employers must comply with the Fair Chance Act by delaying any inquiry into or consideration of criminal history until after a conditional offer, including ordering criminal history background reports only at that stage. Employers must conduct an individualized, job-related assessment before rejecting an applicant based on criminal history. Employers must also follow a two-step notice process—providing a preliminary determination notice and then a final determination notice—when taking action based on criminal history, regardless of how the information was obtained. Recent regulatory changes effective October 1, 2023 expanded and clarified compliance obligations, and the California Civil Rights Department has increased investigations and enforcement activity tied to applicant and employee complaints.

"The FCA generally requires California employers to delay inquiry into or consideration of criminal history until after a conditional offer of employment—this includes ordering a criminal history background report; conduct an individualized, job‑related assessment before rejecting an applicant based on criminal history; and follow a two‑step notice process—a preliminary determination notice and a final determination notice—when taking action based on criminal history, regardless of how the information is obtained."

"In recent years, the California Civil Rights Department (CRD) has stepped up its investigations into complaints of FCA violations, and employers who don't know the rules risk landing on a chute at every turn. The stakes are getting higher for California employers, who are seeing an increase in charges filed with the California Civil Rights Department (CRD) alleging violations of the California Fair Chance Act (FCA)."

"This trend follows the CRD's expanded regulations governing the use of criminal history in employment decisions, which became effective October 1, 2023, and reflects the agency's heightened focus on FCA compliance in response to complaints filed by applicants and employees. Make no mistake, the CRD is not handing out Get Out of Jail Free cards."

"Regulatory amendments approved in 2023 clarified and expanded several key compliance obligations, including: Expanding the definition of "applicant" to include certa..."

Read at California Peculiarities Employment Law Blog