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Employers who hire in San Diego should review their procedures to ensure compliance
The County of San Diego recently implemented a Fair Chance Ordinance, effective October 10, 2024, aiming to reduce hiring discrimination against individuals with criminal histories. Modeled after the County of Los Angeles and other fair chance laws, this ordinance imposes several new requirements for employers, particularly regarding job postings, the timing of criminal background inquiries, and individualized assessment. Below is a summary of the ordinance’s key provisions and compliance steps for employers.
The San Diego Fair Chance Ordinance applies to employers with five or more employees and prohibits certain practices related to criminal history inquiries. With this ordinance, San Diego aims to offer job opportunities to individuals with criminal records who have the qualifications and skills for the job. The ordinance establishes new requirements for job postings and the timing of background checks, and mandates a specific process for individualized assessment. Additionally, it includes record retention requirements to ensure employers keep proper documentation of their hiring practices.
Under the ordinance, employers must adhere to specific guidelines regarding job postings and advertisements. Employers are prohibited from including language that directly or indirectly suggests a candidate with a criminal history will not be considered. Terms such as “no felons” or “clean record required” are considered discriminatory and are strictly prohibited. Job postings must reflect an inclusive approach, allowing individuals with a criminal history to apply without facing immediate bias. By removing such language, employers can attract a wider pool of candidates and ensure that applicants are evaluated based on their qualifications rather than their criminal history.
The ordinance implements strict guidelines on when employers can inquire about an applicant’s criminal background. Employers are prohibited from conducting a criminal history check or asking about criminal records until after a conditional job offer has been made. This approach aligns with “ban the box” principles, which prevent employers from making preliminary hiring decisions based on criminal history. By restricting criminal inquiries until after a job offer, the ordinance encourages a fair evaluation of each applicant’s qualifications.
Employers who routinely conduct background checks as part of the hiring process will need to adjust their timelines. Conditional job offers should be made based on the applicant’s qualifications, work experience, and overall fit for the role. Only after a conditional offer has been extended should employers initiate any background check related to criminal history.
When criminal history is revealed post-offer, employers must complete an individualized assessment before rescinding an offer. This assessment requires evaluating the nature of the offense, the time elapsed since the conviction, and its relevance to the job. The aim is to weigh the criminal history in a way that considers the specific context and relevance to the position rather than automatically rejecting the applicant. Here’s a step-by-step outline of the assessment process:
If, after completing the individualized assessment, the employer decides to rescind the conditional offer based on the applicant’s criminal history, they must provide the applicant with written notice. This notice must explain the decision and include a copy of the background check report. The applicant then has five business days to respond, allowing them to submit additional information or context, such as evidence of rehabilitation or corrections to inaccuracies in the report. The employer must consider this new information before making a final decision.
The ordinance also includes a record retention requirement for employers. Employers must keep records of their hiring practices, including documentation related to background checks, individualized assessments, and written notices provided to applicants. These records must be retained for at least three years following the date of the hiring decision. Maintaining this documentation helps demonstrate compliance in the event of an audit or investigation and can be a valuable reference should any disputes arise regarding hiring decisions.
To ensure compliance with the San Diego Fair Chance Ordinance, employers should:
The San Diego Fair Chance Ordinance emphasizes fair and inclusive hiring practices by preventing bias against individuals with criminal records. Employers benefit from this regulation by ensuring that qualified candidates are given equal consideration, fostering a more diverse and talented workforce. Employers should review their hiring practices, job postings, and background check procedures to align with the ordinance and maintain compliance. With these adjustments, employers can better navigate the requirements and contribute to a fairer hiring process across San Diego County.
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The foregoing content is not given as legal advice but is instead offered for informational purposes only. Fair Screen is not a law firm and therefore cannot offer legal advice. We always recommend speaking with an attorney who is knowledgeable about your company’s individual circumstances prior to making any hiring decisions or policy changes. Fair Screen makes no assurances regarding the accuracy or completeness of this content.