Bryan Little, Farm Employers Labor Service

December 10, 2021

In October 2021, the California Department of Fair Employment and Housing (“DFEH”) announced stepped up efforts to enforce the Fair Chance Act (FCA), enacted in January 2018 and commonly known as California’s “ban-the-box” law.  It amended the Fair Employment and Housing Act (“FEHA”) to prohibit employers with five or more employees from directly or indirectly inquiring into, seeking the disclosure of, or considering an applicant’s conviction history (including questions on a job application) until after the applicant receives a conditional offer of employment. 

The FCA limits on the types of statements employers can make in job postings and advertisements, prohibiting employers from publicizing that they will not consider applicants with a criminal history.  Posting and help-wanted ads stating, “No Felons” or “Must Have Clean Record” are forbidden by FCA.  These and similar statements violate the Act’s requirement that employers consider an applicant’s criminal history individually, and to also consider any mitigating information provided by the applicant that might indicate that the applicant’s criminal history may not be relevant to position the employer is seeking to fill.

DFEH employs sophisticated data technology to find potential FCA violations in job postings and advertisements.  DFEH recently found over 500 advertisements containing unlawful statements that the employer would not consider job applicants with a criminal record in single day.  DFEH documented these violations and sent notices to the employers to remove the unlawful statements.

DFEH has also released a Fair Chance Act Toolkit and plans to release an interactive training and online application in 2022 to assist employers with compliance, including:

• Sample forms;
• DFEH guidance;
• A suggested wording for job advertisements and postings;
• FAQs about the Fair Chance Act; and,
• An informational video.

FELS also offers FCA-compliant employment application forms in English and Spanish in pads of 25 in its supply catalog.  Employers should review their materials, advertisements, and job postings for possible violations of the FCA.  The cost of FCA non-compliance can be high; FCA allows employees who have suffered a violation of the law to file claims with the DFEH and pursue remedies including compensatory damages, punitive damages, and attorney’s fees.