San Diego County recently passed a Fair Chance Ordinance (FCO) that went into effect October 10th. Thankfully, San Diego County’s version of the FCO is far less expansive than the new Los Angeles County Fair Chance Ordinance that has given employers quite the headache.
Looking Closer: San Diego County's Fair Chance Ordinance
The FCO applies to individuals applying to employment, transfers or promotions whose employment position involves performing at least two (2) hours of work on average each week within the unincorporated areas of San Diego County.
There are several new unlawful employment practices including not inquiring into or using criminal history information until after a conditional offer is extended.
We recommend reviewing the FCO in its entirety and consulting with qualified legal counsel.
On the Adverse Action Front
From an adverse action standpoint, prior to taking adverse action, employers must make a written individualized assessment analyzing whether the criminal history has a direct and adverse relationship with the specific job duties. Specific factors to consider are outlined in the FCO. The FCO does not appear to require employers provide the written individualized assessment to the individual.
The pre-adverse action notice must include:
- (i) the specific conviction(s) forming the basis for the preliminary decision
- (ii) a copy of the criminal background report
- (iii) notice of the individual’s right to file a complaint with the OLSE for violation of the FCO and with the California Civil Rights Department for violation of the Fair Chance Act, and
- (iv) an explanation of the individual’s right to respond and the deadline to respond. The explanation needs to inform the individual that they may submit evidence challenging the accuracy of the background report, offer evidence of rehabilitation or mitigating circumstances, or both.
Individuals must then have at least 5 business days to respond before final adverse action is taken. If an individual disputes the report’s accuracy, they must receive another 5 business days. Employers must leave the position open during the waiting period.
Key Takeaways on San Diego County's Fair Chance Ordinance
Employers are encouraged to review the new law, including any necessary changes to job descriptions, retention practices, and adverse action letters and processes.