Employer Moraga-Orinda Fire Protection District has agreed with the California Civil Rights Department to pay $100,000 to settle an alleged violation of the Fair Chance Act.

California's Fair Chance Act (also referred to as "Ban the Box"), gives people with criminal history a chance to obtain gainful employment. The law prohibits employers with five or more employees from asking about criminal history or performing background checks until after a conditional offer of employment is made.

Employers must consider a person's qualifications and determine if the person is a good match for a position prior to obtaining permission to delve into any criminal record. Job applications must not include criminal history inquiries and job advertisements must not rule out persons with a criminal history.

If an employer learns of a potentially disqualifying criminal record in a post-offer background check or disclosure, it must allow the applicant to explain mitigating circumstances, such as how long ago the offense occurred, the type of offense, and whether it has any direct, adverse relationship to the job in question.

For example, if someone shoplifted when he was 18 and is now applying for a job as a carpenter at age 46, the shoplifting crime should not bar hiring the person. But if the person embezzled money two years ago and the open position is company treasurer or cashier, the past crime could be a valid reason to rescind the offer.

In the Moraga-Orinda case, the employer allegedly rescinded a conditional job offer without permitting the applicant to provide mitigating information. As CRD Director Kevin Kish stated: "Everyone deserves a fair chance to make a living for themselves and their families. The Fair Chance Act provides important protections against discrimination that can help empower people to retake control of their lives, give back to their communities, and reintegrate into society."

There are exceptions to the Fair Chance Act for jobs where background checks are required by law, such as caregivers or employees of community care licensed facilities.

Take-Aways:

Covered employers should know and apply Fair Chance Act requirements in their hiring practices.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• Fair Warning - California Clamps Down on Fair Chance Act Violations (December 10, 2021)
• Know Your Boundaries - New Employer Restrictions on Hiring Notices and Interviews Starting 1, 2020 (June 12, 2020)
• New for 2018 California Adopts Ban the Box Law - Ban The Box California 2018 Means Employers Cannot Seek Criminal Record Until After Offer to Hire Applicant(October 27, 2017)

Helena Kobrin
September 22, 2023