Many employers are already aware of California’s Honest Likelihood Act (“FCA”), which went into impact in 2018 and governs how employers might take into account an applicant’s prison historical past in hiring choices. Efficient October 10, 2024, San Diego County adopted its personal Honest Likelihood Ordinance (“SDFCO”). Lined employers within the County should now adjust to each the county’s SDFCO along with the state’s FCA.
To Whom Does the SDFCO Apply?
The brand new ordinance applies to positions that contain performing a minimum of two hours of labor on common every week inside the unincorporated[1] areas of San Diego County for a coated employer. A coated employer is any personal employer who’s both positioned in or doing enterprise within the unincorporated areas of San Diego County, with 5 or extra workers. This consists of any entity that evaluates an applicant’s or worker’s prison historical past on behalf of a coated employer or acts as an agent of a coated employer.
Key Provisions of the SDFCO
Below the ordinance, coated employers are prohibited from inquiring about an applicant’s prison historical past till after a conditional job supply is made. Moreover, they can not embrace questions on prison historical past on functions earlier than extending such a suggestion. If a coated employer “intends to deny … [e]mployment, switch, or promotion” primarily based on prison historical past, the employer should conduct a written individualized evaluation evaluating whether or not the prison historical past “has a direct and antagonistic relationship with the precise duties that justify” the choice, and comply with a county-specific pre-adverse motion letter course of.[2] Lastly, coated employers should retain all information associated to employment functions for a minimum of one yr and should present these information to the Workplace of Labor Requirements and Enforcement (OLSE) or the applicant upon request.
What Is Totally different Between the FCA and the SDFCO?
Though there are lots of similarities between California’s FCA and the County’s SDFCO, there are a number of noteworthy variations:
- Not like the FCA, the SDFCO expressly defines an “applicant” to incorporate these making use of for employment but in addition present workers looking for promotions or transfers.
- Whereas the FCA requires an individualized evaluation of whether or not the applicant’s prison historical past has a “direct and antagonistic relationship with the precise duties” that justifies denying the applicant the place, the SDFCO imposes the extra requirement that the individualized evaluation be written.
- Along with the individualized written evaluation, if a coated employer decides that an applicant’s prison historical past disqualifies them from employment, switch, or promotion, the SDFCO requires that coated employers should notify the applicant in writing. This notification should embrace: (1) particulars of the disqualifying conviction(s) that led to the preliminary resolution; (2) a duplicate of the prison background verify report or related data supply; (3) details about the applicant’s proper to file a criticism with the OLSE concerning the SDFCO and with the state’s Civil Rights Division in regards to the FCA; and (4) an evidence of the applicant’s proper to reply to the preliminary resolution, together with the deadline for doing so and the opportunity of submitting proof to problem the accuracy of the prison background verify report.
- Below the FCA, sure coated employers are exempt from the individualized evaluation necessities. The SDFCO doesn’t present exemptions much like the State FCA.
Enforcement and Penalties
The ordinance grants the OLSE substantial enforcement powers, together with investigating violations, imposing escalating financial penalties (as much as $5,000 for a primary violation, $10,000 for a second, and $20,000 for third and subsequent violations), and recommending suspension or revocation of enterprise licenses for noncompliance. The OLSE can be directed to concern guidelines clarifying employer violations.
Nonetheless, the OLSE can’t concern fines below the SDFCO till July 1, 2025.
Subsequent Steps for Lined Employers
Contemplating the detailed necessities concerning the timing of background checks, the content material of notices, and the necessity for individualized written assessments, employers ought to assessment their hiring, recruitment, and personnel insurance policies and paperwork to make sure they adjust to federal, state, and native laws. Lined employers might also need to take into account implementing coaching concerning the SDFCO for any personnel working in recruiting, in human assets, or on any hiring committee.
FOOTNOTES
[1] Unincorporated areas of San Diego County are areas that aren’t a part of any metropolis however fall below the jurisdiction of the County of San Diego for native governance. Residents in these areas depend on the county for companies like legislation enforcement, hearth safety, and public works, somewhat than metropolis governments.
[2] See County Code Reg. Ordinances, Title 2, Div. 1, Ch. 27, Sec. 21.2704.