California Fair Chance Act…Not If, but When

If you are doing business in California, one of the big changes in hiring has been the California Fair Chance Act. Over the last several weeks, PeopleG2 has done several webinars on this topic to ensure organizations understand the importance of compliance. We do recommend that companies work with legal counsel to ensure that they are indeed compliant.

One of the biggest questions that we are asked, however, seems to be a point of confusion for many HR professionals. Can we still run background checks? The answer, of course, is YES…background checks can still be run and organizations are encouraged to continue to do so as a part of their due diligence in hiring. This law does not negate the ability to run background checks, it simply changes the WHEN the background check is run in the hiring process.

In the “old days,” the background check could be run at any point of the hiring process and used as a tool to gauge in black and white if an applicant was worthy of obtaining employment with XYZ company. Unfortunately, this model left quality candidates for jobs out in the cold due to something appearing on their record. Companies had the ability to just toss that applicant aside and move on to the next.

The biggest thing the Fair Chance Act provides is the opportunity for candidates to be judged on their marketable skills, presentation and their present situation, and not just on their past indiscretions. Following the EEOC Guidance of 2012, it makes potential employers consider three “Green Factors” and evaluate each candidate with a criminal history against these Factors.

  • The nature and gravity of the offense or conduct
  • The time that has passed since the offense, conduct and/or completion of the sentence
  • The nature of the job held or sought

Now…about that decision to run the background check? As mentioned above, it’s not about IF you can, it’s about WHEN you can. The flow chart below gives a good step by step idea of WHEN, which is after the Conditional Offer of employment has been made.

Remember that all of the above is only in regards to the California Fair Chance Act. If a company is in the Cities of Los Angeles or San Francisco, or if they are in other parts of the country, it’s important to review and understand those specific laws as well.