The Fair Chance Act

Historically, it’s been exceptionally difficult for anyone with a criminal conviction to secure employment. Employers would often weed out potential workers by including a question on the job application asking about whether the applicant has been convicted for a crime. However, in 2018, California lawmakers passed the Fair Chance Act, which is a type of “ban the box” law prohibiting employers from asking about an applicant’s criminal history before making a hiring decision. Notwithstanding the new law, some employers continue to inquire about applicants’ criminal records. At The Nourmand Law Firm, APC, our Los Angeles employment law attorneys help employees and job applicants hold employers accountable for their unlawful conduct.

The Fair Chance Act became effective on January 1, 2018. In general, the Act prohibits employees with five or more workers from asking about a job applicant’s conviction history before extending a job offer. The stated purpose of the Fair Chance Act is “to reduce barriers to employment for individuals with conviction histories because gainful employment is essential to these individuals supporting themselves and their families and to improving their community ties and mental health.”

The Fair Chance Act doesn’t necessarily prevent an employer from hiring you if you have a criminal record. However, it forces employers to make hiring decisions without asking about or considering your criminal history. Thus, if you have a criminal record, it is important you understand how the Act works.

In general, the Act prohibits employers from the following before extending a job offer to an applicant:

1. Including a question about an applicant’s criminal history on a job application;
2. Asking about an applicant’s criminal history during an interview; and
3. Checking a job applicant’s criminal record without their knowledge.

If an employer extends a job offer, they can, however, make that offer conditional on a criminal record check. Once an employer extends a conditional offer of employment, they can then inquire about your conviction history. However, an employer cannot consider any of the following:

• Arrests that did not result in a conviction (acquittals, withdrawn charges, etc.);
• Arrests that resulted in the completion of a pretrial or posttrial diversionary program; or
• Convictions that have been sealed, dismissed, expunged or reversed on appeal.

Sometimes, an employer may learn information about your criminal history that results in them wanting to take back the conditional job offer. If an employer wants to rescind a job offer, they can only do so if they make an individualized assessment, taking into account the type of offense, the amount of time that’s passed, and the nature of the position in question. Employers must also follow strict notice requirements informing applicants of their decision, their reasoning, and their right to file a complaint with the Department of Fair Housing and Employment.

In the event an employer violated the Fair Chance Act by inquiring about an applicant’s conviction history, they cannot later use withheld information to take back a job offer. For example, assume you are interviewing for a job, and the interviewer asks if you’ve been convicted of a crime. Aware of the prohibitions against this line of questioning, you falsely tell the interviewer that you have a clean record. The employer makes a conditional job offer and later learns that you indeed have prior convictions. In this case, the employer will not be able to use your failure to disclose that information to take back the job offer.

If you recently were denied employment based on your criminal record, the employer may have violated the Fair Chance Act in failing to hire you. At The Nourmand Law Firm, APC, our employment discrimination lawyers can help. Our dedicated Los Angeles employment attorneys represent workers—and only workers—in all types of employment litigation. We can help you determine if the employer violated the Fair Chance Act and how you can hold them accountable. To learn more, and to schedule a free consultation today, call 800-700-WAGE (9243). You can also connect with us through our online contact form.