Blogs

INDUSTRY NEWS

San Diego County Adds a New Layer to California's Complex Web of Laws Regulating the Use of Criminal Records in the Hiring Process

By Rod M. Fliegel on October 9, 2024

  • Effective October 10, 2024, employers in San Diego County must assess compliance with new criminal record screening regulations.
  • The ordinance applies only in the unincorporated areas of San Diego County.

California state law already saddles private sector employers with significant obligations to job applicants with a criminal record.1 Various local laws layer on top of these obligations to make compliance even more complicated.2 Effective October 10, 2024, the latest local ordinance will take 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 that comply with California state law will mostly satisfy their obligations under the San Diego County ordinance. Still, as these local laws continue to proliferate in California and nationwide, it is a good time for employers to review their criminal record screening policies.

Coverage and Definitions

The ordinance regulates any "employer" with five or more employees that is doing business in the unincorporated areas of San Diego County. "Employer" includes any entity that evaluates an "applicant's" or "employee's" "criminal history" on behalf of an employer or acts as an agent of an employer. "Applicant" means any individual applying for employment, transfer, or promotion whose employment position involves performing at least two hours of work on average each week within the unincorporated areas of the County. "Employee" means an individual whose employment position involves performing at least two hours of work on average each week within the unincorporated areas of the County. "Employment" means any work provided in furtherance of an employer's business enterprise within the unincorporated areas of the County, which includes remote work. "Criminal history" means information regarding one or more convictions or arrests.

Prohibitions on Covered Employers

The ordinance makes the following actions unlawful:

    • Declaring in a job posting or similar listing, including for transfer or promotion, any limitation due to a conviction or arrest, unless required by law.

    • Including in any form of job application or similar document, including for transfer or promotion, any question that directly or indirectly asks about the individual's criminal history. This prohibition applies to all stages of the hiring process before the employer extends a conditional job offer. Employers are prohibited from inquiring about criminal records in any way, directly or indirectly, before extending a conditional job offer.

    • Taking an "adverse action" against an applicant based on criminal history information until after a conditional offer of employment is made. "Adverse action" means an employer's action or decision that materially and adversely affects the terms, conditions, or privileges of employment of an applicant or employee.

    • Except as otherwise allowed or required by law, inquiring about or considering prohibited information about arrest records (not resulting in conviction), diversion programs, or any conviction that has been sealed, dismissed, expunged, or statutorily eradicated, or for which the candidate has received a full pardon or has been issued a certificate of rehabilitation.

Obligations

Employers must conduct an individualized assessment of a candidate's criminal record to determine if it has a "direct and adverse relationship" with the specific duties of the job that justify denying employment, transfer, or promotion. The assessment must be in writing, but the written assessment does not have to be provided to the candidate.3

Employers must provide a pre-adverse action notice to the candidate before taking adverse action. The notice must inform the candidate of, among other things, the right to file a complaint with the California Civil Rights Department and the County of San Diego Office of Labor Standards and Enforcement (OLSE).4 Employers must afford candidates at least five business days to respond to the pre-adverse action notice. Absent "exigent circumstances," the job must remain open during the notice period.

Employers are subject to a one-year record retention requirement for all records and documents related to an applicant's employment, transfer, or promotion applications and the written assessment of criminal records.

Remedies

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

Recommendations

Employers with operations in, or that do business or have contracts with, the County of San Diego, at a minimum, should evaluate necessary changes in when and how they inquire into criminal history during the hiring process. They should also consider whether to undertake a broader (and privileged) assessment to strengthen their compliance with federal, state, and local employment laws that regulate use of a candidate's criminal history. Suggested action items for employers with employees in the County and other jurisdictions having ban-the-box laws are as follows:

  • Review and update job applications and related forms for impermissible inquiries regarding criminal records;
  • Review and update workplace postings to help ensure all required postings are included;
  • Review and update company webpages for necessary additions about fair chance hiring;
  • Provide training to recruiters and other personnel involved in posting job openings;
  • Provide training to personnel who conduct job interviews and make or influence hiring and staffing decisions to explain permissible inquiries into, and uses of, criminal history;
  • Provide training to personnel involved in ordering and adjudicating background reports;
  • Review written and electronic communications about the hiring process, including conditional job offer templates and pre-adverse action and adverse action notices; and
  • Review the hiring and screening process to help ensure compliance, including the timing of background checks, the distribution of mandatory notices, and the application of mandatory deferral periods.
This article was originally published on Littler Mendelson's website. Click here to read the original article.

© 2024 Littler Mendelson. All Rights Reserved. LITTLER MENDELSON®, ASAP®, INSIGHT® and LITTLER REPORT® are registered trademarks of Littler Mendelson, P.C.

Posted: October 21, 2024


1 See Rod M. Fliegel, William J. Simmons, and Wendy Buckingham, Governor's Veto Will Likely Result in Continued Delayed or Non-Performable Background Checks in California, Littler ASAP (Oct. 6, 2022).

2 See, e.g., Rod M. Fliegel, Bill Simmons, and Chad Kaldor, County of Los Angeles Enacts a Sweeping Fair Chance Ordinance for the Unincorporated Areas of the County that Far Exceeds Federal and California Law, Littler Insight (Mar. 13, 2024); Rod Fliegel and Jennifer Mora, "Ban-the-Box" and Beyond: Employers That Do Business In or Contract with the City of San Francisco Should Review Sweeping Restrictions Regarding Inquiries Into, and the Use of, Criminal Records, Littler Insight (Feb. 14, 2014).

3 Employers must share the written assessment with the candidate when subject to the ordinance in the City or County of Los Angeles.

4 No other law in California requires such information in the pre-adverse action notice. Similar information is required by state law and local ordinances in the adverse action notice (i.e., the notice mailed to the candidate to inform the candidate of the employer's final decision).


All Rights Reserved © 2024 Truescreen, Inc.
This document and/or presentation is provided as a service to our customers. Its contents are designed solely for informational purposes, and should not be inferred or understood as legal advice or binding case law, nor shared with any third parties. Persons in need of legal assistance should seek the advice of competent legal counsel. Although care has been taken in preparation of these materials, we cannot guarantee the accuracy, currency or completeness of the information contained within it. Anyone using this information does so at his or her own risk.

Sending...
Thank you for your interest in Business Information Group. We have received your message and will contact you in one business day or less.
Something went wrong.Try again
You have exceeded the number of attempts to submit this form. As a result, your IP address has been temporarily blocked.
Something went wrong.Try again

Get In Touch

Send a Message *fields required

What are your Interests?optional

Even our RFP PROCESS is state-of-the-art.

Find out why
RFP Kit

What Our Clients Are Saying

The service you provide at Truescreen has been the best I have ever seen in comparison to other vendors I have worked with in the past! You guys rock!

Talent Acquisition Specialist
Retail Store Chain

I am very impressed with your company’s customer service, and the Truescreen portal seems to be an intuitive, user-friendly design.

Learning Coordinator
Public College

Our team loves working with Truescreen and the expedient, thorough service and results we get from you.

Human Resources Executive
Large Hotel Chain

I appreciate all your hard work ensuring that individuals are cleared through our processes. Truescreen makes my job so much easier and less stressful.

Human Resources Analyst
Large Academic Institution

You are leaving Truescreen.com

Ok, Continue Cancel

×
×