On February 17, 2023, California Senate Bill 809 (SB 809) – also called the “Fair Chance Act of 2023” – was introduced and, if passed into law, would replace some existing laws prohibiting discriminatory background check practices and limit most criminal background checks of job applicants conducted by private sector employers to “specified circumstances.”
Introduced by California State Senators Lola Smallwood-Cuevas (D-Los Angeles) and Aisha Wahab (D-Hayward), SB 809 “would make it an unlawful employment practice to take adverse action against an employee or discriminate against an employee in the terms, conditions, or privileges of their employment based on their arrest or conviction history.” The bill states:
- Existing law, the Investigative Consumer Reporting Agencies Act, prohibits certain persons, including a person intending to use an investigative consumer report for employment purposes, from procuring or causing to be prepared the report unless certain conditions are met. Under that act, one of those conditions require the person procuring or causing the report to be made to provide a clear and conspicuous disclosure in writing to the consumer, at any time before the report is procured or caused to be made and in a document that consists solely of the disclosure, certain information.
- This bill would require that information to also include either all laws and regulations that impose restrictions or prohibitions for employment on the basis of a conviction, if any, or all the specific job duties of the position for which a conviction may have a direct and adverse relationship that has the potential to result in an adverse employment action, as described.
- Existing law, the California Fair Employment and Housing Act (FEHA), prohibits an employer from engaging in various defined forms of discriminatory employment practices. Existing law provides it is an unlawful employment practice under FEHA for an employer with 5 or more employees to, among other things, include on any application for employment any question that seeks the disclosure of an applicant’s conviction history, to inquire into or consider the conviction history of an applicant until that applicant has received a conditional offer, and, when conducting a conviction history background check, to consider, distribute, or disseminate information related to specified prior arrests, diversions, and convictions. Existing law requires an employer who intends to deny an applicant a position of employment solely or in part because of the applicant’s conviction history to make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job, and to consider certain topics when making that assessment, as described.
- This bill would enact the Fair Chance Act of 2023, which would revise, recast, and expand the above-described unlawful employment practices, individualized assessments, and associated remedies, as provided. The bill, among other things, would make it an unlawful employment practice to take adverse action against an employee or discriminate against an employee in the terms, conditions, or privileges of their employment based on their arrest or conviction history or to 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. The bill would authorize employers to conduct a conviction history background check only in specified circumstances. The bill would require an employer to post clear and conspicuous notice informing applicants and employees of certain information, including the act, as described.
- This bill would require an employer and their agents to retain specified records relating to an applicant’s employment or promotion applications and the individualized assessments and would require employers and their agents to provide or provide access to the records and documents to the Civil Rights Department in any administrative enforcement proceeding, as provided, or to the applicant. The bill would provide that any record or document retained or received by a local agency employer or the department is confidential and not subject to disclosure under the California Public Records Act, except as specified. By imposing additional prohibitions on local agencies, the bill would impose a state-mandated local program.
- This bill would set forth, among other remedies, a training requirement and civil penalties based on the recurrence of the violation and employer size. The bill would set forth procedures for imposing civil penalties and for complainants to make claims for those penalties with the department. The bill would establish the Fair Chance Act Enforcement Fund and make moneys in the fund available to the department upon appropriation for purposes of administering and enforcing the act. The bill would establish the Fair Chance Act Recovery Fund and would make moneys in the fund available to the department upon appropriation for purposes of paying claims made by complainants.
- This bill would require the department to issue rules and regulations regarding when an employer action constitutes a violation of the act for purposes of imposing civil penalties and for purposes of the additional remedies and penalties under the FEHA. The bill would also require the department to annually publish a report containing statistics regarding the total number of penalties issued pursuant to the act, as described. The bill would make conforming changes and would make related findings and declarations.
Statistics cited in the “Fair Chance Act of 2023” reveal that there are more than 7 million people in California with conviction histories of some kind, including 2 million working-age Californians living with a felony record, and an analysis of data shows that approximately 60 percent of formerly incarcerated people are jobless at any given time across the United States.
In 2018, California passed the “Fair Chance Act” to reduce barriers to employment for people with conviction histories. However, since the passage of this “Ban the Box” law, “formerly incarcerated persons in California continue to face discrimination and have struggled to hold employers accountable for violations of the Fair Chance Act,” according to SB 809.
ClearStar is a leading global Human Resource technology company specializing in background checks, drug testing, and occupational health screening. ClearStar believes in compliance and has numerous certifications that can help employers comply with federal, state, and local laws for workforce screening. To learn more about ClearStar, please contact us.
© 2023 ClearStar. All rights reserved. – Making copies of or using any part of the ClearStar website for any purpose is prohibited unless written authorization is first obtained from ClearStar. ClearStar does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.
Let's start a conversation
Thomas Ahearn - Digital Content Editor
Thomas Ahearn is a Digital Content Editor at ClearStar, a leading Human Resources technology company specializing in background checks, drug testing, and occupational health screening. He writes about a variety of topics in the background screening industry including Artificial Intelligence (AI), "Ban the Box," class action lawsuits, credit reports, criminal records, drug testing, Equal Employment Opportunity Commission (EEOC), Fair Credit Reporting Act (FCRA), identity theft, privacy, social media screening, and workplace violence.
At ClearStar, we are committed to your success. An important part of your employment screening program involves compliance with various laws and regulations, which is why we are providing information regarding screening requirements in certain countries, region, etc. While we are happy to provide you with this information, it is your responsibility to comply with applicable laws and to understand how such information pertains to your employment screening program. The foregoing information is not offered as legal advice but is instead offered for informational purposes. ClearStar is not a law firm and does not offer legal advice and this communication does not form an attorney client relationship. The foregoing information is therefore not intended as a substitute for the legal advice of a lawyer knowledgeable of the user’s individual circumstances or to provide legal advice. ClearStar makes no assurances regarding the accuracy, completeness, or utility of the information contained in this publication. Legislative, regulatory and case law developments regularly impact on general research and this area is evolving rapidly. ClearStar expressly disclaim any warranties or responsibility or damages associated with or arising out of the information provided herein.
