The California Department of Fair Employment and Housing (“DFEH”) recently announced a new effort to identify and correct violations of the Fair Chance Act.  The Fair Chance Act, which was enacted in January 2018 and is commonly known as California’s “ban-the-box” law, amended the Fair Employment and Housing Act (“FEHA”) to prohibit employers with five or more employees from directly or indirectly inquiring into, seeking the disclosure of, or considering an applicant’s conviction history (including questions on a job application) until after the applicant receives a conditional offer of employment.  We previously summarized employers’ obligations under the Fair Chance Act here.

Among its restrictions, the Fair Chance Act imposes limitations on the types of statements employers can make in job advertisements.  The law prohibits employers from publicizing that they will not consider applicants with a criminal history.  This includes, for example, advertisements stating, “No Felons” or “Must Have Clean Record.”  These and similar statements violate the Fair Chance Act’s requirement that employers consider an applicant’s criminal history on an individual basis, as well as any mitigating information provided by the applicant.

While the Fair Chance Act has been in place since January 2018, the DFEH (the agency charged with enforcing the Fair Chance Act) continues to identify non-compliant job advertisements and materials that employers have posted online.  In fact, in a recent one-day review of online job advertisements using technology to conduct mass searches of online job advertisements, the DFEH found over 500 advertisements containing unlawful statements that the employer would not consider job applicants with a criminal record.  The DFEH announced that it is documenting these violations and sending notices to the employers to remove the unlawful statements.

The DFEH also released a Fair Chance Act Toolkit and plans to release an interactive training and online application in 2022 to assist employers with compliance.  The toolkit provides the following resources:

Sample forms that employers can use to follow the Fair Chance Act’s required procedures;

A guide to using DFEH’s sample forms;

A suggested statement that employers can add to job advertisements and applications to let applicants know that the employer will consider individuals with criminal histories;

Answers to frequently asked questions about the Fair Chance Act; and

An informational video that explains the Fair Chance Act.

In light of the DFEH’s enforcement posture and its monitoring of online job advertisements, employers are encouraged to carefully review their recruiting and hiring materials and consult with their legal counsel to ensure compliance with the Fair Chance Act.  The legal ramifications for non-compliance are high as the Fair Chance Act allows employees who have suffered a violation of the law to file claims with the DFEH and pursue remedies under the FEHA, which may include compensatory damages, punitive damages, and attorney’s fees.

Whitney Nonnette Perry is an associate in the Labor and Employment Practice Group in the firm's Los Angeles office.

Her practice is focused on defending Fortune 500 companies in a broad range of civil lawsuits. Ms. Nonnette Perry has successfully resolved claims for discrimination, harassment, retaliation, wage and hour violations, unfair labor practices, wrongful termination, intentional infliction of emotional distress, breach of contract, and defamation at all stages of litigation. 

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