San Diego County has joined other areas in California in enacting their own Fair Chance Ordinance. While many aspects of the Ordinance align with California law, employers should review and ensure they comply with the additional requirements they may be subject to and may need to implement.
The Basics:
Location: Unincorporated San Diego County, CA
Legislation: Ordinance 10914
Type: Ban the Box / Fair Chance
Operative: October 10, 2024
Key Takeaways:
· Employers cannot inquire into or consider any criminal record history until after a conditional offer has been made.
· Employers must make a written individualized assessment of the criminal record history and the nature of the job sought.
· Employers may not fill the open position during the dispute unless exigent circumstances require the position to be filled immediately.
Who does this Ordinance apply to?
· Employers located or doing business in unincorporated San Diego County.
· Employees whose position involves performing at least two (2) hours of work on average each week within the unincorporated area of San Diego County.
What are the requirements for an Employer to take adverse action?
· Perform an individualized assessment reviewing the criminal history and the nature of the position sought to determine if the criminal history has a direct and adverse relationship to the nature of the job held or sought. This assessment shall be in writing and maintained in the Employer’s files for one year.
· If, after conducting the assessment, the employer has made a preliminary decision that the criminal history potentially disqualifies the applicant or employee, the employer must:
o Provide the disqualifying conviction that is the basis of the preliminary decision.
o Provide a copy of the Background Check report or source of information.
o Provide notice of the applicant’s right to file a complaint with OLSE or the state’s Civil Rights Department for violation of the Fair Chance Act.
o Provide an explanation for the applicant’s right to respond before the decision becomes final and the deadline to respond. Applicants should be given at least five (5) business days to respond and five (5) additional business days to respond if they are disputing the accuracy of the report.
Is the Employer required to hold the position open?
Employers shall not fill the position until either (i) five business days have passed without a dispute from the individual or (ii) the additional five business days provided to the individual to respond, has concluded. This does not apply in exigent circumstances requiring the position to be filled immediately.
Are there other requirements?
Yes. We recommend all impacted Employers review this Ordinance carefully with their legal counsel to understand all their obligations.
Are there any exceptions?
Yes. For example, the Ordinance does not prohibit an employer from inquiring or taking adverse action based on an individual’s particular conviction if the employer is prohibited by state or federal laws and regulations, to employ an individual with that conviction. We recommend reviewing with your legal counsel to confirm if your organization meets the exemptions as defined in the Ordinance.
Recommendations
We recommend to review and discuss with your legal counsel your organization’s policies and procedures to ensure continued compliance with the changing laws and regulations.
