BLOG

Legislators are reviewing a proposed bill that would prohibit most private sector employers in California from running criminal background checks for employment purposes.

The Fair Chance Act of 2023

California legislators introduced Senate Bill 809 (SB809), which is also known as The Fair Chance Act of 2023. The purpose of this proposed legislation is to “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.”

If passed, SB809 would stipulate that it is unlawful for employers to:

• Post job advertisements that indicate an applicant might not be granted employment if they have a criminal record.
• Include questions about a person’s conviction history on job applications.
• End an interview, reject an applicant or terminate the employment or promotion of an individual based on conviction history information.
• Require self-disclosure of an applicant’s conviction history at the time of, or any time after, a conditional offer of employment or promotion.
• Inquire about:
• Arrests that did not lead to convictions.
• Referral to or participation in a pretrial or posttrial diversion program.
• Convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law, or any conviction for which the person has received a full pardon or certificate of rehabilitation.

When Could Employers Screen?

SB809 seeks to greatly limit the number of scenarios in which organizations may run background checks. They would be able to screen applicants if:

• They are required by law to obtain “information regarding the particular conviction of the applicant.”
• An individual with a particular conviction history is prohibited by federal or state law from holding the position sought, regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation.
• The employer is prohibited by federal or state law from hiring an applicant who has that particular conviction, regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation.

Individualized Assessments

SB809 also says that if an employer considers an adverse action based on the results of a background check, they would be required to conduct an individualized assessment that covered:

• The nature and gravity of the offense or conduct.
• The amount of time that passed since the offense or conduct.
• The nature of the job held or sought.

This assessment would need to be done in writing and provided to the applicant. That documentation would required to demonstrate one or more specific elements in the nature and gravity of the offense or conduct in the applicant’s conviction history have a direct and adverse relationship to one or more specific elements in the nature of the job held or sought.

Following receipt of this documentation, applicants would have 10 business days to dispute the accuracy of the conviction that resulted in the potential adverse action. If the applicant says they intend to obtain evidence to support their claim, they must be granted an additional 5 days.

Why Background Checks Matter

Second Chance laws can be beneficial to thousands of Americans, organizations and society, but background checks continue to be an essential part of the due diligence process. They help hiring managers make informed decisions, maintain safe workplaces and avoid claims of negligent hiring. Employers use them to protect their employees, customers and brand.

At Backgrounds Online, we are dedicated to providing fair and transparent background checks that help our customers build strong teams. If you need to screen applicants, contractors or volunteers, please contact us. Our experienced team can help you customize packages that suit your particular needs, applicable laws and industry regulations. We are available to assist you Monday through Friday from 5am to 6pm PT.