Labor & Employment Law Blog

The FCO contains a variety of requirements applicable to covered applicants and employees, including:

• Prohibiting covered employers from including in any job advertisements any limitations due to convictions or arrests, except to the extent required by law, and prohibiting such employers from inquiring into or taking any adverse action against an applicant based upon criminal history, prior to making a conditional offer of employment.
• Restrictions on the types of criminal history that can be inquired into or considered, including that covered employers cannot consider arrests not followed by convictions, referrals or participation in a pretrial or posttrial diversion program, or convictions that have been sealed, dismissed, expunged, statutorily eradicated, pardoned, or are subject to a certificate of rehabilitation.
• Covered employers are allowed to require applicants to complete necessary forms, before issuing a conditional offer of employment, solely for the purpose of applying for incentives to hire individuals with conviction histories, but all such information must be kept in a confidential file separate from the personnel file and must not be used for any other purpose.
• Prior to denying employment, a transfer, or a promotion due to criminal history, a covered employer must make a written individualized assessment of whether the criminal history has a direct and adverse impact on the specific job duties that justify the adverse action. This differs from California state’s FCO, which does not require the individualized assessment to be committed to writing.
• If the employer wishes to withdraw the conditional offer of employment based on the results of the individualized assessment, it must provide preliminary notice to the applicant which must include, among other things, notice of the applicant’s or employee’s right to file a complaint with the County of San Diego Office of Labor Standards and Enforcement (“OLSE”) for violation of the SDFCO and with the state’s Civil Rights Department (“CRD”) for violation of the state’s FCO. The applicant then has at least 5 business days in which to provide evidence challenging the accuracy of the background check report or evidence of rehabilitation or mitigating circumstances, before the employer may make a final decision.
• Covered employers must keep all records and documents related to an applicant’s employment, transfer, or promotion applications and any written assessments or reassessments performed per the SDFCO, for 1 year.

Covered employers must ensure that they comply with the stricter of state and local laws governing the use of criminal history in employment. Employers with questions about the SDFCO or the use of criminal history in employment may contact the authors of this article or their usual AALRR counsel.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

© 2024 Atkinson, Andelson, Loya, Ruud & Rom