DFEH Updates “Ban The Box” Regulations And Provides FAQ

Weintraub Tobin

Since its implementation on January 1, 2018, The Fair Chance Act has been a source of questions for California employers. Also referred to as “banning the box,” Government Code section 12952 makes it illegal for most employers in California to ask about the criminal record of job applicants before making a conditional job offer. 

The Department of Fair Employment and Housing (“DFEH”) recently amended the regulations implementing the law, with an effective date of October 1, 2020. Among the updates are the following:

  • An expanded definition of  an “applicant” to include individuals who begin work before an employer’s review of their criminal history. Specifically, the regulations state that “[a]n employer cannot evade the requirements of [the FEHA] or this regulation by having an individual lose their status as an ‘applicant’ by working before undertaking a post-conditional offer review of the individual’s criminal history.”
  • A clarification that the Act must be complied with even when selecting workers supplied by labor contractors and union hiring halls.
  • An explanation that employers who are required by law to conduct criminal background checks, do not have a full exemption from the Fair Chance Act. The regulations specify that employers may not utilize records not permitted for disclosure by law, and that such employers must still be able to justify their policies. As the regulations state, “[c]ompliance with federal or state laws or regulations that mandate particular criminal history screening processes, or requiring that an employee or applicant possess or obtain any required occupational licenses constitute rebuttable defenses to an adverse impact claim under the Act.”
  • A direction that “[w]hile employers are prohibited from considering referral to or participation in a pretrial or post-trial diversion program, it is permissible to consider these programs as evidence of rehabilitation or mitigating circumstances after a conditional offer has been made if offered by the applicant as evidence of rehabilitation or mitigating circumstances.
  • A reminder that in addition to following the Fair Chance Act, employers must also ensure compliance with other local laws and ordinances.

In addition, the DFEH published a FAQ, which describes the law, explains how the law works, addresses what employers are covered by the law, and provides guidance as to when employers may inquire into an applicant’s criminal history and (where necessary), rescind a conditional job offer. That FAQ can be found here.

The FAQ and amended regulations demonstrate that the DFEH takes the Fair Chance Act seriously. Employers should take great care in understanding the procedures set forth in the Act to promote compliance, and also ensure those individuals within their organization that are charged with hiring are properly trained on intricacies of the Act and how to properly implement it.

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Weintraub Tobin

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