The DFEH Now Using Technology To Identify Unlawful Job Advertisements

In California, nearly 8 million of the state’s 40 million residents have a criminal record.  Research has shown that when individuals with criminal records have access to gainful employment, it helps reduce recidivism.  However, these individuals often face barriers to employment.

That is why on October 20, 2021, the California Department of Fair Employment and Housing (DFEH) announced that it is now utilizing technology to identify and enforce violations of the Fair Chance Act – a “Ban the Box” law seeking to reduce barriers to employment for individuals with criminal records.

According to the DFEH, this technology allows them to mass-search online job advertisements for statements in violation of the Act.  Particularly, it targets statements saying that the employer will not consider job applicants with a criminal record.  If the search discovers an unlawful statement, the DFEH then sends a notice to the employer to remove the statement.  According to the DFEH, during a one-day test, the mass-search tool discovered over 500 job advertisements using unlawful statements.  This new enforcement technology should prompt employers to review their job advertisements to ensure they comply with the Fair Chance Act.

The Fair Chance Act

The California Fair Chance Act, codified as section 12952 in the Government Code, went into effect on January 1, 2018.  The Act repealed Labor Code section 432.9, which prohibited only public employers from asking job applicants about their criminal conviction history before determining whether the applicant met the minimum employment requirements, and instead broadened this prohibition.  Now under the Act, this prohibition applies to both public and private employers with five or more employees.  However, some exceptions apply.  For instance, the Act does not apply to job positions for which another law requires the employer to conduct background checks or to restrict employment based on criminal history.[1]

As noted, the goal of this Act is to help individuals with conviction histories obtain gainful employment in order to support themselves and reduce their chance of recidivating.  Therefore, to help achieve this goal, the Act makes it unlawful for an employer to:[2]

• Include on a job application, any questions seeking disclosure of an applicant’s conviction history.
• Ask about or consider an applicant’s conviction history before the employer makes a conditional job offer.
• Consider, distribute, or disseminate (while conducting a conviction history background check), information about arrests not followed by conviction, referrals to or participation in pretrial or post-trial diversion programs, and convictions that have been dismissed, sealed, expunged, or statutorily eradicated.

As a result, employers must be cognizant of the language they use in their job advertisements.  Blanket statements such as “No felons” or “Must have a clean record” would violate the Act.

Therefore, LCW encourages employers to reach out to ensure their job advertisements and hiring practices comply with the Fair Chance Act.

[1] Cal. Gov. Code 12952 (d).

[2] Cal. Gov. Code 12952 (a).