The California Office of Administrative Law recently approved amendments to the California Fair Chance Act regulations, as proposed by the California Civil Rights Council. Effective October 1, 2023, these changes impact employers with five or more employees and involve inquiries into an applicant’s criminal history prior to a job offer.
One key amendment concerns the process following an initial assessment where an employer believes an applicant’s conviction history might disqualify them. The modification stipulates that the employer must inform the applicant in writing of this preliminary decision. The written notice should encompass the disqualifying conviction, a copy of the relied-upon conviction history report, the applicant’s right to respond before the decision becomes final, and guidance on the type of evidence that can challenge the conviction history or demonstrate rehabilitation. The notice also must indicate the response deadline.
Further amendments address the concept of individualized assessment. This process is now explicitly defined as a “reasoned, evidence-based determination.” The regulations delineate the factors that should be considered when assessing whether an applicant’s conviction history directly and adversely relates to the job’s specific duties.
Additionally, the revised regulations provide clarity on evidence related to rehabilitation or mitigating circumstances. Applicants may provide such evidence voluntarily or through a third party upon request. The amendments prohibit certain employer actions, such as rejecting additional evidence from applicants, mandating specific types of evidence, disqualifying candidates for not providing certain evidence, and soliciting information about domestic violence survivor status or medical conditions.
The modifications also outline the reassessment process for employers deciding whether to revoke a conditional job offer based on conviction history. Factors include the applicant’s behavior during incarceration, post-conviction employment history, community engagement, rehabilitative efforts, and other mitigating factors.
These changes extend the Fair Chance Act’s jurisdiction to encompass labor contractors, union hiring halls, and client employers. These entities must adhere to the same regulations, especially for workers entering a pool or availability list.
Regarding the IRS Work Opportunity Tax Credit, employers can now request applicants to complete IRS form 8850 or its equivalent before extending a conditional offer. This data gathering is acceptable as long as it’s solely for credit application purposes.