California’s DFEH Cracks Down on Fair Chance Act Violations

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California employers, beware: The Department of Fair Employment and Housing (DFEH) announced a new initiative to crack down on violations of the Fair Chance Act.

Pursuant to the statute, employers with five or more employees in the state may not ask applicants, prior to a conditional offer of employment, any questions that would disclose a conviction history; employers are required to comply with specific procedures for considering an applicant’s criminal history after a conditional job offer.

The Fair Chance Act also bans blanket statements in job advertisements to the effect that an employer will not consider anyone with a criminal history, such as “No Felons” or “Must Have Clean Record.” The statute requires that employers consider an applicant’s criminal history on an individual basis, as well as any mitigating information provided by the applicant.

In a new initiative, the DFEH is utilizing technology to conduct mass searches of online job ads for statements that violate the Fair Chance Act. For example, in a one-day review, the agency found more than 500 job ads with unlawful statements that the employer will not consider any job applicant with a criminal record. DFEH is documenting the violations and sending notices to the employers to remove the unlawful statements.

“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,” DFEH Director Kevin Kish said in a statement. “DFEH is committed to preventing employment discrimination through innovative enforcement actions and by providing clear guidance to employers.”

The agency also provided a new toolkit of resources to help employers achieve compliance with the statute.

In addition to sample forms that employers can use to follow the Fair Chance Act’s required procedures, the toolkit includes 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 about the Fair Chance Act, and an informational video that explains the statute.

To access the DFEH’s Fair Chance Act toolkit, click here.

Why it matters: Levering technology, the DFEH will be reviewing California job ads en masse for potential Fair Chance Act violations. To help employers comply with the statute, the agency created a new toolkit, including sample forms. The DFEH also plans to release an interactive training and an online app in 2022.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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