The California Department of Fair Employment and Housing (DFEH) announced a new affirmative effort to detect and correct violations of the Fair Chance Act (FCA)—California’s ban-the-box law—by using online technology to identify words and phrases in job advertisements that violate the FCA. The FCA was first enacted on January 1, 2018, to prohibit employers with five or more employees from asking job candidates about their conviction history before making them a job offer.
On October 20, 2021, the DFEH announced a new effort to enforce the FCA by using online search tools to capture statements in job advertisements that violate it, sending more than 500 notices to employers in violation in just one day. The DFEH indicated that it is documenting these violations and has provided an online toolkit as a resource for employers. “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,” Kevin Kish, director of the DFEH, said.
The DFEH also provided the following examples of statements it deems in violation of the FCA and should not be present in job advertisements:
The DFEH made it clear that it will “continue to monitor job advertisements” in compliance with the FCA and encourages individuals to report discriminatory job advertisements or file complaints with the DFEH. Possible consequences for violating the FCA include actual damages for injuries or losses, (including back pay and loss of future income); compensatory damages for pain, suffering, humiliation, and emotional distress; punitive damages and attorneys’ fees and court costs.
To ensure compliance with California law and to avoid DFEH scrutiny, McDermott recommends that all employers immediately review their job applications, background check forms and onboarding documents with experienced employment counsel, including: