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 as we are limiting this communication to the adverse action impacts.
Adverse Action Impacts
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.
Action Items
As the majority of the new FCO’s adverse action requirements are in alignment with the California statewide law, Asurint does not believe additional system modifications are necessary at this time. If initiating the pre-adverse action letter in the Asurint system on an individual with a California-based address, you are already prompted to identify the specific conviction(s) that are forming the basis for your decision.
However, there is a need for impacted employers to review their adverse action letters. Asurint has updated our sample pre-adverse action letter. We encourage you to have any letters used reviewed by qualified legal counsel. Please note, we will not be making any automatic updates to adverse action letters you may use in our system. Please contact Asurint if you would like changes made.
Please contact our Compliance team at compliance@asurint.com if you have any questions. We’re happy to answer your emails, hop on a call or provide any educational information to help you navigate this situation.