September 18, 2024
San Diego employers now have additional legal restraints on conducting and relying on criminal checks of applicants. California employers already have significant state and federal law restrictions on considering an applicant’s criminal history. San Diego just enacted its own legislation, which is intended to supplement California’s California’s 2018 Fair Chance Act (FCA). Here is what you need to know.
Who is Protected by the San Diego Fair Chance Ordinance (SDFCO)?
Employers will need to comply with SDFCO with respect to any jobs that require at least two hours of work weekly within the unincorporated areas of San Diego County.
Which Employers are Covered by SDFCO?
A covered employer is any private employer located in or doing business in the unincorporated areas of San Diego County who has five or more employees.
What Are the Key Provisions of SDFCO?
- Employers cannot ask about criminal history until after a conditional job offer is made, nor can they include such questions on applications.
- If an employer intends to deny employment based on criminal history, they must conduct a written individualized assessment to determine if the history adversely relates to job duties, and follow a specific notification process.
- Employers must keep application records for at least one year and provide them to the applicant upon request.
How Does SDFCO Differ From FCA?
- SDFCO mandates a written assessment for denials, while the FCA does not.
- SDFCO requires detailed written notifications to applicants if they are disqualified due to criminal history.
- Unlike the FCA, SDFCO does not exempt certain employers from the assessment requirement.
What Are The Consequences of Violating SDFCO?
Enforcement will be managed by the Office of Labor Standards and Enforcement, which can impose escalating penalties for violations (but cannot fine until July 1, 2025).
What This Means For Your Workplace?
In addition to complying with state and federal law, San Diego employers need to exercise caution in considering applicant criminal data. If you are considering conducting background searches that include inquiries on criminal history, exercise caution and consult with your favorite employment counsel!
