San Diego County is adding regulations regarding the use of criminal records when hiring employees

California state law already imposes significant obligations on private sector employers regarding applicants with criminal records. In addition to these obligations, there are various local laws that make compliance even more complicated. Effective October 10, the latest local ordinance went into effect in the unincorporated areas of San Diego County. The good news for employers is that this ordinance does not go nearly as far as the new ordinance that applies to the unincorporated areas of Los Angeles County. In fact, employers who comply with California state law will largely comply with their obligations under the San Diego County ordinance. As these local laws continue to spread in California and across the country, it is a good time for employers to review their criminal record checking policies.

Coverage and definitions

The ordinance regulates any “employer” with five or more employees doing business in the unincorporated areas of San Diego County. “Employer” includes any legal entity that evaluates an applicant’s or employee’s criminal history on behalf of an employer or acts as an employer’s representative. “Applicant” means any person applying for employment, transfer or promotion whose employment position involves working an average of at least two hours per week in the unincorporated areas of the County. “Employee” means a person whose employment consists of working an average of at least two hours per week in the unincorporated areas of the County. “Employment” means any work performed in furtherance of the business of an employer in the unincorporated areas of the County, including remote work. “Criminal history” is information about one or more convictions or arrests.

Prohibitions for insured employers

The regulation makes the following actions illegal:

• Disclosure of a restriction due to a conviction or arrest in a job posting or similar listing, including for transfers or promotions, unless required by law.
• Including any form of application or similar document, including transfer or promotion documents, any question that relates directly or indirectly to the criminal history of the person. This prohibition applies to all stages of the recruitment process that result in the employer making a conditional offer of employment. Employers are prohibited from inquiring directly or indirectly about criminal records before making a conditional offer of employment.
• Taking an “adverse action” against an applicant based on criminal history information until a conditional offer of employment is made. “Adverse actions” are actions or decisions taken by an employer that materially and adversely affect the terms, conditions or privileges of employment of an applicant or employee.
• Unless otherwise permitted or required by law, inquiring or considering prohibited information about arrest records (that do not result in a conviction), diversion programs, or convictions that have been sealed, dismissed, expunged, or vacated by statute, or for which the candidate was convicted of receiving a full pardon or a rehabilitation certificate has been issued.

Commitments

Employers must conduct an individual assessment of an applicant’s criminal record to determine whether it has a “direct and adverse connection” to the specific duties of the job that warrants denial of employment, transfer, or promotion. The assessment must be in writing, but the written assessment does not have to be given to the candidate.

Employers must provide advance notice of adverse action to the candidate before taking any adverse action. The notice must, among other things, inform the candidate of the right to file a complaint with the California Department of Civil Rights and the County of San Diego Office of Labor Standards and Enforcement (OLSE). Employers must give applicants at least five business days to respond to the advance notice. Unless there are special circumstances, the position must remain open during the notice period.

Employers are subject to a one-year retention requirement for all records and documents relating to an applicant’s employment, transfer or promotion applications and written criminal history assessments.

Remedy

The OLSE can impose fines on employers, but otherwise the regulation does not provide for a private right of action.

Recommendations

Employers operating in, doing business in, or contracting with the County of San Diego should, at a minimum, consider necessary changes in when and how they investigate an applicant’s criminal history during the hiring process. They should also consider whether they should conduct a more comprehensive (and privileged) evaluation to strengthen compliance with federal, state and local employment laws that govern the use of a candidate’s criminal history. Recommended actions for employers whose employees are employed in the County and other jurisdictions with ban-the-box laws are as follows:

• Review and update applications and related forms for improper criminal records inquiries.
• Review and update job postings to ensure all required postings are included.
• Review and update the company’s websites for any necessary additions to the topic of fair chance hiring.
• Provide training to recruiters and other personnel involved in posting job vacancies.
• Provide training to employees who conduct interviews and make or influence hiring and staffing decisions to explain acceptable criminal investigations and uses.
• Provide training for employees involved in ordering and assessing background reports.
• Review written and electronic communications about the hiring process, including conditional job offer templates and advance and adverse action notices.
• Review the hiring and screening process to ensure compliance, including the schedule of background checks, the distribution of mandatory notices, and the application of mandatory deferrals.

Rod M. Fliegel is an attorney at Littler in San Francisco. © 2024 Littler. All rights reserved. Reposted with permission.