California Senate Bill 460 to Eliminate Criminal Records from Screening
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California law prohibits people who offer housing for rent from discriminating on the basis of race, religion and a number of other factors. At present, criminal history isn’t one of them. A proposed law, Senate Bill 460, would disallow discrimination based on a criminal background, and it would also go a step further. In most cases, a housing provider wouldn’t even be allowed to ask about an applicant's criminal record.
What Is California Senate Bill 460?
SB 460 was introduced on February 13, 2023. It is tentatively called the Fair Chance Access to Housing Act. The name is similar to the Fair Chance Act, which governs the use of criminal history background checks by employers.
The bill would prohibit landlords, referred to in the bill’s language as “housing providers,” from inquiring about a prospective tenant’s criminal history. In most cases, it would disallow them from refusing to rent based on a criminal past when and if they learn about it. According to the bill’s sponsors, this bill is in the best interests of the State of California for several reasons. It would reduce homelessness and the public cost of homelessness. It should reduce recidivism. Another concern cited in the bill is that criminal records can be unreliable and that sometimes housing providers are making adverse decisions based on faulty information.
Here are some key points of SB 460:
Advertising
Under the proposed law, housing providers would be prohibited from producing any advertising that says or even implies that people with criminal records will be turned away. There is an exception; lessors are allowed to mention any restrictions that are required for compliance with federal law.
Furthermore, a housing provider would be required to display a notice of tenants’ rights. The notice will be published and provided by the California Housing Finance Agency. It would have to appear in advertising, at any rental or leasing office and also on websites..
Application and Housing Provider Inquiries
When accepting and reviewing an application, a housing provider would not be allowed to ask about criminal history. They would be prohibited from requiring an applicant to disclose criminal history or insisting that the applicant authorize the release of their criminal history.
If they do order a criminal background check, they must inform the applicant in advance and receive written permission before they proceed. When they receive the results from a criminal history background check, they generally may not refuse to rent based on what they learn. There are very limited exceptions that are required to comply with federal law.
Exceptions
SB 460 is meant to be inclusive, but, in some cases, federal law automatically excludes tenants who have committed certain offenses. For example, sex offenders are ineligible for public housing. People who have been convicted of manufacturing methamphetamine are not allowed in a federally assisted housing unit.
A search for this type of criminal history is allowed only after the housing provider has qualified the tenant, provided a conditional rental agreement and acquired written consent from the tenant to make the search. When these criteria are satisfied, the landlord or their CRA may search a database maintained by the California Department of Justice.
If the search uncovers a reason that the tenant cannot legally occupy the property, the housing owner must provide the tenant with a written explanation. This notification must include the reason for the denial, a copy of the report and a list of local legal resources. After that, the tenant must be given an opportunity to rebut the findings.
Applicant Recourse
An applicant who has been wrongly denied housing can take action for injunctive relief. They may also be able to collect actual damages, statutory damages and punitive damages. Statutory damages can be up to three times the amount of a month’s rent, and punitive damages may be allowed if the tenant can show that the wrongful action was committed with oppression, fraud or malice.
Information and Record Keeping
Under the proposed law, the California Housing Finance Agency would provide lessors with a notice that tells applicants what their rights are and explains what to do if they think there has been a violation. Any provider who provides affordable housing would have to submit an annual certificate of compliance with the Civil Rights Department.
How Does California SB 460 Affect CRAs?
As always, CRAs will have to know the law and keep housing providers apprised of what they can and can’t search for as well as what they can do with the information they receive. They must understand the criteria that have to be met before a background search can be ordered so they can help their clients comply with the restrictions of the new law.
SB 460 would not outlaw tenant screening. Housing providers will still be allowed to do credit checks to ensure the tenant can pay the rest. They can still exclude smokers and pets. They just can’t automatically reject an applicant with a criminal record.
Even if SB 460 becomes law, CRAs will still be called on to do criminal records searches for housing providers. However, there will only be a limited number of crimes that they will be searching for and reporting on.
How Far Back Do Criminal Background Checks Go in California?
There are limitations on what incidents can be reported in a California criminal background check and on how far back into the past a screener can look. These restrictions exist today and will continue to exist if SB 460 is enacted. These rules apply to any kind of background search, including pre-employment searches.
Background checks are limited to the past seven years. No record older than that can be reported. Also, reports may not include arrests that didn’t result in a conviction. Background searches may not report juvenile records or adult records that have been sealed. They are not allowed to show pardons or expungements. They are not permitted to show participation in either a pre-trial or post-trial diversion program.
Criminal record-keeping is complex and varies from state to state and even from county to county. Eagle Eye Screening Solutions is a screening partner that has the systems and experience to deal with the complexity. We keep on top of all the regulatory changes in every locality, and we provide CRAs, employers and housing providers with accurate search results that comply with federal, state and local law.
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