California DFEH Enforcement: What You Need to Know

On October 20, 2021 the California Department of Fair Employment and Housing (DFEH), the enforcement agency for California’s civil rights laws, announced plans to conduct online audits to identify job postings and advertisements that violate the Fair Chance Act (“FCA”). In this blog, we’ll cover everything you need to know about DFEH’s new initiative. But first, let’s understand  the FCA. 

The Fair Chance Act went into effect on January 1, 2018.  It is a California law that prohibits employers with five or more employees from asking about conviction history before making a job offer in an effort to break down barriers to employment for system-impacted individuals. 

As many as 1 in 3 Americans have a criminal record, ranging from minor offenses to extensive conviction histories. These individuals are often met with greater scrutiny and bias in the hiring process, perpetuating a cycle of recidivism. Employment helps returning citizens become financially stable and dramatically reduces their likelihood of reentering the criminal justice system. Not only is “fair chance” hiring good for business and society but incorporating fair hiring practices keeps your business in compliance with the FCA. 

The FCA is a type of law commonly known as a “Ban the Box” law. Approximately 36 states and 150 municipalities have adopted “Ban the Box” laws, which generally prohibit employers from inquiring into an applicant’s criminal conviction history before extending a conditional offer of employment. 

The DFEH announced it is using unspecified technology  to run sweeping searches of online job postings to find violations of the rules set forth by the Fair Chance Act. It is looking for any statements in a job post suggesting that an employer is asking about or considering an applicant’s criminal history prior to a conditional job offer, such as a blanket statement that no one with a criminal history may apply (for example, “No Felons”). 

In a press release, DFEH reported that they will document violations and send notices to employers with unlawful statements. In one day, DFEH found over 500 job postings with statements by an employer violating the FCA. 

The Department released a new toolkit of resources as a guide for employers to comply with the FCA, including sample forms and statements. Employers are encouraged to review and revise job ads, postings, and application language to ensure they’re in compliance with these guidelines. This includes but is not limited to making sure there are no checkboxes for criminal history on an initial application and no statement or suggestion that those with criminal records are automatically disqualified from consideration. 

Find DFEH’s sample forms here, including: 

Employers should contact their labor and employment counsel to make sure their job postings are in compliance with the FCA. 

In addition, Checkr offers resources to help employers stay compliant and incorporate fair chance hiring practices. To learn more, download our free resource, How to Be a Fair Chance Employer.