On October 20, 2021, The California Department of Fair Employment and Housing (DFEH) announced in a press release a new effort that uses unspecified technology to conduct mass searches for statements in online job advertisements to identify violators of the Fair Chance Act.
In a one-day review, the DFEH found over 500 job advertisements that had unlawful statements that violated the Fair Chance Act stating that the employer would not accept any applicants with a criminal record. The DFEH is documenting and notifying the employers to remove the unlawful statements.
The Fair Chance Act
The Fair Chance Act took effect on January 1, 2018. The purpose of the Fair Chance Act, also known as "Ban-the-Box," is to reduce barriers for the employment of individuals with a criminal history. It prohibits employers with five or more employees from asking job candidates about their criminal history before making a job offer.
In a one-day review using the DFEH's unspecified technology, it found over 500 job advertisements that had unlawful statements that violated the Fair Chance Act stating, the employers would not accept any applicants with a criminal record. The DFEH is documenting and notifying the employers to remove the unlawful statements. The statements that indicated violations of the Fair Chance Act included suggestive language such as "must-have clean record" and "no felons." The DFEH is also encouraging individuals to report discriminatory job advertisements or file complaints with the department.
"Using technology to proactively find violations of the state’s anti-discrimination laws is a
powerful strategy for our department to protect Californians’ civil rights," said DFEH Director Kevin Kish. "DFEH is committed to preventing employment discrimination through innovative enforcement actions and by providing clear guidance to employers."
Fair Chance Act Toolkit
The DFEH put together a Fair Chance Act Toolkit of resources in an effort to keep employers compliant with the Fair Chance Act. The toolkit includes:
- Sample forms that employers can use to follow the Fair Chance Act's required procedures
- A guide to using DFEH's sample forms
- A suggested statement that employers can add to job advertisements and applications to let applicants know that the employer will consider individuals with criminal histories
- Answers to frequently asked questions (FAQs) about the Fair Chance Act
- An informational video that explains the Fair Chance Act
California's Ban-the-Box Law: What Employers Should Know
California's Ban-the-Box law prohibits employers from considering a candidate's criminal history until after a job offer is made and or revoking the candidate's job offer because of their criminal history. Employers must consider the following:
- The nature and gravity criminal offense
- The time that has passed since the conviction and completion of the sentence
- The nature of the job
If the employer decides to take back the job offer based on the criminal history, they must tell the candidate in writing, provide a copy of the criminal history report they used, and give the candidate at least five business days to respond. DFEH Director Kevin Kish stated in the press release, "Employers should thoughtfully consider an individual’s circumstances before denying them a job, rather than acting on stereotypes and generalizations."
Ban-the-Box Laws Nationwide
Ban-the-Box is a national movement that seeks to remove potential discrimination in hiring practices, helping to give individuals with prior criminal convictions a fair chance at employment consideration.
As of October 1, 2021, 37 states and more than 150 cities and countries have adopted Ban-the-Box laws. California being the first to implement technological measures to enforce the law. Ban-the-Box laws continue to get passed. Some of the most recent states to adopt or expand their Ban-the-Box policies include:
How Orange Tree Can Help
Orange Tree is in regular communication about compliance and regulatory updates as the legal landscape changes. By providing regular communication, webinars, and other resources on state-specific Ban-the-Box legislation and regulatory changes, we can help ensure that you receive up-to-date information on these legal issues.
Orange Tree Ban-The-Box Resources:
Schedule a call to learn how we can help ensure your screening process is compliant with the current and changing Ban-the-Box laws.
We recommend employers review and discuss with your legal counsel your organization’s policies and procedures to ensure continued compliance with the changing laws and regulations.