New Limits on Criminal History Use in Hiring

Effective October 10, 2024, San Diego County’s Fair Chance Ordinance expands the state’s “Ban the Box” law, adding new restrictions on how employers can use criminal history in hiring decisions. It applies to employers with five or more employees performing at least two hours of work per week in unincorporated areas of the county.

Key Requirements

• Criminal History Inquiry: Employers cannot ask about criminal history until after extending a conditional job offer.
• Individualized Assessment: If an employer intends to deny employment based on criminal history, it must conduct a written assessment to determine whether the conviction is directly related to job duties.
• Pre-Adverse Action Process: Employers must provide a formal pre-adverse action letter and notify the applicant of their right to file a complaint with the County’s Office of Labor Standards and Enforcement (OLSE).
• Record Retention: Employment records must be kept for at least one year.

Differences from State Law

• Written Documentation: Unlike California’s Fair Chance Act, the ordinance requires employers to document the individualized assessment.
• No Exemptions: The ordinance applies to all covered employers without exemptions provided by the state law.

Penalties and Enforcement

• OLSE Authority: The OLSE can conduct investigations and recommend business license suspension for noncompliance.
• Fines: Penalties for violations start at $5,000 for the first offense and escalate to $20,000 for repeated violations. However, fines won’t be issued until July 1, 2025

Next Steps for Employers

Employers should review their hiring practices and background check procedures to align with local, state, and federal laws. It is also essential to update policies and train managers on the new requirements to avoid penalties.