California Senate Bill 809 to Limit Criminal Background Checks
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On February 17, 2023, the California Senate approved Bill 809. Proponents call it the “Fair Chance Act of 2023” because it would replace and strengthen California’s 2018 Fair Chance Act. If it becomes law, it will tighten the conditions under which an employer can order a criminal background check and in most cases prohibit this kind of check entirely.
What Is California Senate Bill 809?
The California Senate is convinced that, despite the existing Fair Chance Act, unemployment among former convicts is still too high. This is not only a hindrance in helping these people get their lives back on track but also a strain on state services that support the unemployed. California SB 809 aims to provide gainful employment for a larger percentage of former offenders.
It
prohibits employers from inquiring about prior convictions and running background checks. Furthermore, they can’t use criminal history as a hiring criterion even if they learn about it in another way, such as hearing it from the applicant or reading a news article online.
There are limited exceptions. Employers may conduct criminal history checks when they’re required by federal or state law for specific jobs. Also, there are certain job descriptions for which they can exclude applicants who have committed specific crimes that can be shown to create a risk for someone in that position.
Many of the restrictions are already found in the Fair Chance Act that California Senate Bill 809 would replace. Even today, employers may not ask whether a person has been convicted of a crime on an application or early in the interviewing process. They may not order criminal background checks until a conditional offer of employment has been extended. If they reject the candidate based on a conviction, they must explain to the candidate in writing what they did and why. They must give the candidate an opportunity to rebut their argument.
Under SB809, they would be required to conduct a new assessment if the applicant provides new information. They would have to show that the specific crime in question truly creates a risk for one or more of the specific duties of the job.
SB 809 also strengthens the disclosures that the employer must make to the applicant. They would have to post a significant amount of information about candidates’ rights, including all the laws and regulations that restrict their ability to conduct criminal history screenings.
Outside of the limited exceptions, employers would be prohibited from taking any adverse action based on criminal history, including refusing to interview, terminating an interview, refusing to hire and terminating employment.
How To Comply with SB 809
Employers will need to review the law and ensure that they meet all its requirements. That includes not the things they are prohibited from doing but also the things they must proactively do.
- They must post a copy of the new act in a prominent place, written in English, Spanish and any other languages that at least 10 percent of employees speak.
- They must include language in all job advertisements stating that they will consider qualified candidates with a criminal history, unless it is inconsistent with state or federal law.
- Where background checks are required or permitted, they must disclose their intention to conduct such a check.
- They must retain all documents, records and written assessments for four years.
Employers already have significant responsibilities under the existing Fair Chance Act. The new complexity would put employers at even greater risk of running afoul of the law. To ensure they’re compliant, they should work with a CRA that they can trust and that uses trustworthy screening services.
What Is the Limit for Background Checks in California?
Whether or not SB 809 becomes law, there are limitations on what information may be reported from a criminal background check in California. Background checks are limited to the previous seven years. Any criminal record that is older than that may not be reported.
In addition, reports may not include arrests that did not result in a conviction. They may not report participation in diversion programs, whether they took place before or after a trial. They will not report juvenile records or any adult records that have been sealed. They may not report non-felony marijuana convictions that are more than two years old.
What Is the Fair Chance Act in California?
Unless SB 809 becomes the law, fair chance hiring will continue to be governed by the 2018 Fair Chance Act. This law restricts when criminal background checks can be ordered and how it can be used. The new law differs in significantly restricting whether these checks can be used at all.
One of the key features of the California Fair Chance Act is the so-called “Ban the Box” rule. This provision, which has been adopted by the majority of the states, prohibits asking about criminal convictions on a standard application form. The name “Ban the Box'' derives from the yes-no checkboxes that once frequently appeared next to the question, “Have you ever been arrested or convicted of a crime?”
Under the Fair Chance Act, questions about criminal history and criminal background checks are not permitted early in the hiring process. The employer is required to make a conditional decision before they know anything about the candidate’s criminal past. When a tentative offer of employment has actually been extended, the employer may then order the background check. If a criminal conviction turns up, the employer may rescind the offer only if the offense creates a risk in the workplace or disqualifies the candidate from one or more of the specific duties of the job.
If the employer does rescind the offer, they must explain in writing why they did so. The candidate must then be given a chance to dispute the report or challenge the reasons why the crime disqualifies them for employment.
California SB 809 differs from the current law by being more restrictive on whether criminal history can be used at all. It’s also more stringent about the circumstances under which an employer can rescind an offer.
Whether or not California Senate Bill 809 is enacted, employers and CRAs are likely to face changes in background check laws and how they are applied. Quite often, court rulings clarify aspects of the law and force employers and background screeners to modify their practices. That’s why it’s important to engage a screening partner who keeps abreast of the latest laws and all their interpretations. Eagle Eye Screening Solutions know the rules across multiple jurisdictions and continue to provide criminal research results that are fast, accurate and compliant with all regulations.
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