On February 17, 2023, the California State Senate introduced Senate Bill 809 (“SB 809” or “Fair Chance Act 2023”), which would ban criminal background checks by most private sector employers. SB 809 is currently pending review by the Senate Judiciary Committee and contains eight sections.
Current Law
AB 1008, which took effect on January 1, 2018, amended the California Fair Employment and Housing Act to restrict an employer’s ability to make hiring and personnel decisions based on an individual’s criminal history. Existing California law also restricts an employer’s ability to obtain an individual’s criminal history from public records.
SB 809: Proposed Changes
SB 809 seeks to further restrict an employer’s ability to use an individual’s criminal history information in hiring and personnel records. Specifically, the bill would make it unlawful:
[T]o take adverse action against an employee or discriminate against an employee in the terms, conditions, or privileges of their employment based on their arrest or conviction history or to end an interview, reject an application, or otherwise terminate the employment or promotion application process based on conviction history information provided by the applicant or learned from any other source.
Section 2 would amend the California Investigative Consumer Reporting Agencies Act. Job applicants would be entitled to a disclosure that includes either (1) all the specific job duties of the position for which a conviction may have a direct and adverse relationship that has the potential to result in an adverse employment action; or (2) all laws and regulations that prohibit or restrict the hiring or employment on the basis of a conviction.
While the bill places restrictions on when and how an employer can inquire about an applicant’s criminal history or conduct a conviction history background check, an employer required by state or federal law may still inquire about criminal records. With saying that, section 4 of the bill provides that an employer may only conduct a background check if a conditional offer of employment is made first. Even after extending a conditional job offer, it would be unlawful for an employer to declare, print, or circulate any solicitation, advertisement, or publication for employment or promotion that states any limitation or specification regarding conviction history.
MNK Law will continue to monitor developments with respect to SB 809. For more information on the use and consideration of criminal history in employment decisions, please contact us at info@mnklawyers.com.
This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between MNK Law and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material.
