Quick Hits
- Effective October 10, 2024, private employers must comply with the county’s Fair Chance Ordinance, which restricts the timing and use of criminal history in employment decisions.
- The ordinance applies to positions that involve performing at least two hours of work on average each week within the unincorporated areas of the county.
- Employers may not inquire about an applicant’s criminal history before making a conditional job offer, and must conduct a written analysis and formalized pre-adverse action process before making an adverse decision based on criminal history.
Highlights of the County Ordinance
Key features of the county’s Ban the Box ordinance include the following:
- The ordinance applies to positions that involve performing at least two hours of work on average each week within the unincorporated areas of the county.
- Employers may not inquire about an applicant’s criminal history before making a conditional job offer. They also may not include questions about criminal history on applications prior to that offer.
- If an employer “intends to deny … [e]mployment, transfer, or promotion” based on criminal history, the employer must conduct a written individualized assessment evaluating whether the criminal history “has a direct and adverse relationship with the specific duties that justify” the decision, and follow a county-specific pre-adverse action letter process.
- Employers must retain all records related to employment applications for at least one year.
Key Differences Between California’s Fair Chance Act and the County Ordinance
Although there are many similarities between California’s Fair Chance Act and the ordinance, there are some notable differences. Most significantly, an employer that intends to take adverse action against an applicant for employment, transfer, or promotion based, in whole or in part, on the individual’s criminal history must conduct a written individualized assessment to determine whether the individual’s criminal history has a direct and adverse relationship with the specific duties of the job that justifies the adverse action. This varies from the state’s Fair Chance Act that does not mandate that its assessment be documented.
Although the three factors that an employer must consider in this written assessment are similar to the state’s (as well as the federal Green Factors), the County Ordinance presents them in a slightly different way. It is unclear whether these differences were intended by the County.
In addition to the individualized written assessment, the ordinance calls for unique pre-adverse action letter requirements. These include an obligation to notify the employee of the right to file a complaint with the County of San Diego Office of Labor Standards and Enforcement (OLSE) for violations of the ordinance.
Lastly, under state law, certain employers are exempt from the individualized assessment requirements. The county’s ordinance, however, still requires employers covered under the ordinance to comply with the notice and individualized written assessment requirements and does not provide exemptions similar to the state’s.
Enforcement and Penalties
The ordinance provides OLSE significant enforcement authority, which includes conducting investigations of possible violations of the ordinance, as well as issuing hefty monetary penalties which can increase for each violation. In addition, the county may recommend the suspension or revocation of business licenses for noncompliance. The ordinance further directs the OLSE to issues rules and regulations to further clarify the ordinance and when an employer action would constitute a violation for purposes of imposing penalties.
The ordinance imposes significant monetary penalties on employers for noncompliance. The OLSE may fine employers found to have violated the ordinance up to $5,000 for a first violation, $10,000 for a second violation, and up to $20,000 for third and subsequent violations.
As noted above, fines cannot be issued by the OLSE until July 1, 2025.
Next Steps
Given the nuanced requirements related to the timing of background checks, contents of notices, and individualized written assessments, employers may want to review their hiring, recruitment, and personnel policies and documents to ensure compliance with federal, state, and local requirements.
California and San Diego pre-adverse action letters, adverse action letters, and law summaries will be available on the Ogletree Deakins Client Portal to Premium-level subscribers. For more information on the Client Portal or a Client Portal subscription, reach out to clientportal@ogletree.com. California and San Diego instructions and pre-adverse and adverse action letters for background checks through third-party background check vendors also are available on a flat-fee basis. Contact backgroundchecks@ogletree.com for more details.
Ogletree Deakins’ San Diego office will continue to monitor developments and will provide updates on the Background Checks and California blogs as additional information becomes available.
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