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California Civil Rights Council Amends Regulations in the 2018 Fair Chance Act

California Civil Rights Council Amends Regulations in the 2018 Fair Chance Act

In a move toward promoting fair employment practices and second chances for individuals with criminal records, the California Civil Rights Council (CCRC) has recently made amendments to the regulations in California’s 2018 Fair Chance Act. These revised regulations, which went into effect on October 1, 2023, aim to provide greater clarity and guidance to employers and job seekers alike. The Fair Chance Act, also known as “Ban the Box,” has been a pivotal piece of legislation in California’s ongoing efforts to reduce discrimination against those with criminal histories in the hiring process.

Background

The 2018 Fair Chance Act, signed into law by then-Governor Jerry Brown, is a piece of legislation designed to provide individuals with prior criminal convictions a fair shot at employment. The Act restricts employers from inquiring about an applicant’s criminal history until after a conditional offer of employment has been extended. This means that employers are prohibited from including questions about criminal records on job applications or during initial interviews. The Act aims to ensure that individuals with criminal records are not immediately disqualified from job opportunities, giving them a chance to prove their qualifications and suitability for the position.

The Amendments

The recent amendments made by the California Civil Rights Council seek to further strengthen the Fair Chance Act and provide additional clarity to both employers and job seekers. Some of the key changes include:

  1. Timing of Background Checks: The revised regulations specify the appropriate timing for conducting background checks. Employers are now required to wait until after a conditional offer has been made before conducting any background checks. This helps ensure that an applicant’s criminal history is not used as an initial screening tool.
  2. Individualized Assessment: The amendments emphasize the importance of conducting an individualized assessment when considering an applicant’s criminal history. Employers are encouraged to consider factors such as the nature and gravity of the offense, the time that has passed since the conviction, and the applicant’s rehabilitation efforts.
  3. Notice Requirements: Employers must now provide clear and specific notices to applicants if they intend to take adverse action based on their criminal history. These notices should include information about the conviction(s) that are the basis for the decision and a reasonable opportunity for the applicant to respond.
  4. Training Requirements: The revised regulations also highlight the importance of training for employers to ensure compliance with the Fair Chance Act. Employers are encouraged to provide training to their staff involved in the hiring process to ensure that they understand and adhere to the law.

Impact and Implications

By providing clearer guidelines for employers and emphasizing individualized assessments, these changes are expected to reduce discrimination and open up more employment opportunities for those who deserve a second chance. It’s important to note that employers should familiarize themselves with these updated regulations and ensure that their hiring practices align with the Fair Chance Act. Failure to do so may result in legal consequences.

Further information on these changes can be found on the Ogletree website and other sources across the web.

Contact us today to see how SELECTiON.COM® can improve your background check process.


This page gives a general overview of legal matters. However, it is your responsibility to ensure compliance with all the relevant federal, state, and local laws governing this area. SELECTiON.COM® does not provide legal advice, and we always suggest consulting your legal counsel for all applicant approval matters.

This page is provided for information purposes only, and the contents hereof are subject to change without notice. This page is not warranted to be error-free nor subject to any other warranties or conditions, whether expressed orally or implied in law, including implied warranties and conditions of merchantability or fitness for a particular purpose.

The Compliance Mistake You Could Be Making

The Compliance Mistake You Could Be Making

Businesses are required to let an applicant know why they were rejected. Thanks to the Fair Credit Reporting Act (FCRA), there are laws put into place to make sure applicants are informed of their rights. Failure to implement this step of the background check process now can mean costly litigation in the future.

The Importance of Being FCRA Compliant and Sending Adverse Action Letters

If a company decides not to hire an applicant due to their background check, regardless of the reason, the company is obligated to notify the applicant. FCRA guidelines mandate that the company must send the applicant a Pre-Decision Letter notifying them of the potential for adverse action based upon information uncovered during the pre-employment screening. Adverse action is a denial of employment or any other decision for employment purposes that adversely affects any current or prospective employee, according to the FCRA.

What is a Pre-Decision Letter?

A pre-adverse action letter is a notice to the applicant that the company might not hire them due to information uncovered during their background check. This initial mailing must also include a copy of their background check and a Consumer Rights Letter. Keep in mind that this letter is not the final decision notice. 

According to the FCRA, if a criminal background report contains information which “in whole or in part” may cause you to take any adverse action, including rejecting that candidate for employment, denying a promotion, or terminating a current employee, then you must provide a copy of the report to the applicant and the CFPB’s summary of rights prior to making your decision final.

It’s suggested that you wait 4-5 business days after you mail a copy of the report and the summary of rights, before contacting the applicant with your final decision. By sending a Pre-Decision letter, this allows time for the applicant to address or dispute any incorrect information before the company makes their final decision.

What is an Adverse Action Letter?

It is a final notice that informs the applicant the company decided to either not to hire them, cancel their offer of employment, or terminate their employment.

Failure to follow the above proper procedure could lead to litigation.

SELECTiON.COM® stays up-to-date on all FCRA regulations and provides the tools to keep you compliant with the click of a button via our proprietary web portal, Fastrax®. We offer pre-populated Pre-Decision and Adverse Action Letters free of charge on your custom dashboard, or by checking a box, our clients can choose to have our in-house staff do the mailings for them.

If you don’t know what the Summary of Rights or Adverse Action forms are, not to worry, we have you covered! These forms are conveniently available on the Fastrax® website.

Contact us today to see how SELECTiON.COM® can improve your background check process.

The Landlord’s Guide to Background Screening

The Landlord’s Guide to Background Screening

Finding the right renters for your house or apartment can be difficult. A bad tenant can cause months of headaches, among other issues. For that reason, many landlords have turned to background checks as a first step to screening potential renters.

What background checks do landlords typically run?

  • Consumer credit report
  • Eviction report
  • SSN trace and address history
  • Employment verification
  • Criminal history report

Landlords who decide to implement a background screening process for potential tenants, or engage the services of a third party to do it for them, will immediately discover an assortment of challenging and involved statutes, laws, and regulations. The Fair Credit Reporting Act (FCRA) is an essential part of any background check program, and it’s crucial for you to understand how it applies to your situation.

What is the FCRA?

The FCRA is a federal law that governs the collection, assembly, and use of consumer information. It provides the framework for the credit reporting system in the United States, including consumer credit information. FCRA regulates the practices of Consumer Reporting Agencies that collect and compile consumer information into reports for use by credit grantors, insurance companies, employers, landlords, and other entities who make eligibility decisions affecting consumers.

The FCRA regulates landlords in the following manner:

  • FCRA sets rules for what information landlords can gather and rules for how gathered information can be used, i.e., the extent to which property owners can use background check results in making tenancy decisions.
  • Many states also restrict what criminal background and credit information landlords may obtain and/or use.
  • Landlords who utilize CRAs to procure criminal background reports must take specific “pre-procurement” steps.

10 FCRA Best Practices

  1. Provide notice to the subject that a criminal background check may be obtained for tenancy purposes.
  2. Obtain authorization from the subject of the criminal background report.
  3. Make this notice a stand-alone document.
  4. If a criminal background report contains negative information which “in whole or in part” may cause you to take any adverse action, including rejecting that candidate for tenancy, you must provide the applicant a pre-decision letter, a copy of the background check report, and the FCRA Summary of Rights.
  5. Give the applicant sufficient time to obtain /dispute/ clarify the background check report before making a final decision.
  6. After the appropriate waiting period (4-5 business days) has passed, if you decide to take adverse action, provide notice of such adverse action to the subject of the background check. Although notice may be provided orally, the more prudent route is to use written or electronic notification.
  7. Move away from broad, across-the-board criminal background exclusions.
  8. Refine general exclusion standards to apply to the actual positions sought.
  9. Use individualized assessments when considering applicants with criminal records.
  10. Consider state law restrictions on obtaining and using criminal background information.

SELECTiON.COM® provides the comprehensive and customizable screening solutions needed to navigate the legal aspects of background screening. We stay up-to-date with all EEOC and FCRA regulations and provide you with all of the forms you need on our proprietary system, Fastrax®. Our system allows property owners to stay compliant and provides clients with the ability to follow the background check process from start to finish. In addition, our Applicant Entry system will obtain accurate information straight from the applicant, as well as an electronic release form.

Contact us today to see how SELECTiON.COM® can take your tenant background check process to the next level.

NOTE: The contents of this article are not legal advice for your particular situation. You should neither act nor rely upon anything stated in this article without first consulting your own legal counsel.

Important Update: California DOB Redaction

Important Update: California DOB Redaction

SELECTiON.COM® is closely following a court decision adversely affecting consumers and employers.

On Wednesday, September 1, 2021 the California Supreme Court denied review in the matter of All of Us or None vs. Hamrick. The Professional Background Screening Association (PBSA), Consumer Data Industry Association (CDIA) and dozens of other organizations filed an amicus letter with the California Supreme Court on July 15, asking the Court to take up the Fourth Appellate District’s Hamrick opinion on the grounds that it misconstrued several rules of court as barring the use of identifiers such as DOB and driver’s license number as search filters for use in locating online criminal records.

This denial means that we will continue to see courts in California redacting date of birth from both their online and public access terminals. It is also very possible that court clerks will stop providing clerk assistance to verify full dates of birth – as we have recently seen in Los Angeles County. Criminal-records checks in California will continue to become more difficult, and in some cases impossible.

We will be keeping up with this issue and the PBSA’s Government Relations Date-of-Birth Redaction Task Force as they now begin execute two potential alternative paths to resolution.

1. Work with the California Judicial Council to modify the rule.  

2. Create a legislative campaign to introduce statutory changes that requires the Judicial Council to modify the rule.

However, even if successful, the outcome is not likely to happen for another year. We will notify you as soon as there is additional information available.

The Future of Hiring Is Here, Are You Ready?

The Future of Hiring Is Here, Are You Ready?

The world is (hopefully) getting back to normal soon now that vaccines are readily available to the general public. That means we can move back into our offices and begin the daily grind alongside each other once again. Right? That may be true for some, but many companies will likely decide to keep part of their workforce remote or offer flex positions.

The COVID-19 pandemic has fundamentally transformed the office workspace. A recent study by LiveCareer found that 61% of employees want their employer to let them work in a remote capacity indefinitely. Also, 29% of working professionals go so far as to say that they would quit if they had to return to the office after the pandemic. That leaves companies set on returning to the typical 9-5 in-office workspace in quite a predicament.

If you were one of the many companies delaying implementing remote positions pre-COVID-19, you weren’t alone. Among many reasons, companies feared productivity issues would be a logistical nightmare. And, while there have certainly been some bumps along the way, many companies have effectively implemented remote positions. A recent survey by Mercer, a human resources and workplace benefits firm, showed 94 percent of 800 employers surveyed indicated productivity was the same or higher with their employees working remotely.

Many companies are considering drastically downsizing their office space for the coming year and offering flex positions.

According to a survey from the consulting firm, PwC found that executives and employees are converging around a post-pandemic future with a lot more flexibility, yet few are prepared to completely abandon the office space. As a result, by design or default, most companies are heading toward a hybrid workplace where a large number of office employees rotate in and out of offices configured for shared spaces.

That seems to confirm LiveCareer’s further findings. Thirty percent of professionals surveyed said that if going back to the office is inevitable, they’d like to work there three days a week. Twenty-five percent said two days a week, and 19% said one day. Just 9% said four days.

So, what does this mean for you? And how does this affect hiring and background checks?

Remote hiring was likely a fast-tracked implementation for many, so now is the perfect time to reflect on what did and did not work over the last year. What steps of the hiring process can now be improved and secured?

Here are our hiring tips for the post-COVID-19 reality:

  • Clearly define your background check requirements per position. The Equal Employment Opportunity Commission (EEOC) already recommends this to avoid disparate impact. Adding fully remote or flex job offerings may change the background check selection, so be sure to appropriately update your handbooks or hiring guidelines.
  • Be sure to make it clear if you plan on making a currently remote position in-house once the pandemic is over.
  • Are you going to offer flex positions? If so, be clear on when they are expected to be in the office. For example, will it be one or two specific days a week or days of their choosing, etc…
  • If you require a video interview, be sure to use an application compatible with the most common devices, such as Apple, Android, and Windows.
  • There has been a significant shift in how people shop, resulting in an uptick in hacker activity and an increased need for cybersecurity. Therefore, it’s more important than ever to partner with a background check company that offers an easy-to-use and secure online portal for applicants to enter personal information.

In addition to everything above, it’s important to note that while EEOC recommendations will likely evolve with the new remote/flex working reality, the requirement of strict Fair Credit Reporting Act (FCRA) regulation adherence remains the same.

  1. Always obtain a signed release form.
  2. If a person is denied the position, regardless of the reason, always send a copy of their background check, a Pre-Decision letter, and a copy of their consumer rights.
  3. Follow up with an adverse action letter five business days later.

In these uncertain times, it pays to have a trusted partner who can provide the data you need and the customer support to answer all your questions. Our unparalleled support, combined with our nationwide researcher network, makes SELECTiON.COM® a valuable background check partner.

Our five-star customer support team is not only industry experienced but tenured in their time with our company. Our staff is available to you via phone, email, and chat, Monday through Friday, from 8 am to 8 pm.

SELECTiON.COM® offers employment and education verifications, character reference reports, criminal history reports, and our Search America® locator tool is the largest in the industry with other 1 billion records.

Contact us today to develop a fast and accurate background check program to meet your needs.

NOTE: This article gives a general overview of legal matters. However, it is your responsibility to ensure compliance with all the relevant federal, state, and local laws governing this area. SELECTiON.COM® does not provide legal advice, and we always suggest consulting your legal counsel for all applicant approval matters.

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