A Crime Does Not Necessarily Make a Criminal


By Molly Wood, SPHR, MAOL Senior HR Consultant

The Fair Chance Act is a California law that went into effect in 2018 with the intention to reduce undue barriers to employment for people with criminal histories. This law prohibits employers from asking about criminal history prior to making a job offer, with the idea being that biases (unconscious or otherwise) against those who have been convicted and/or accused of a crime will be lessened if the decision has already been made that this is the right person for the job. The Fair Chance Act also requires individual analysis to be conducted if a criminal history is found to determine if the infraction has a direct negative bearing on the person’s ability to perform the job.

Effective October 1, 2023 the Fair Chance Act added specific considerations that employers are required to bear in mind. These factors include:

  • Whether the harm was to property or people.
  • The degree of the harm (e.g., amount of loss in theft).
  • The permanence of the harm.
  • The context in which the offense occurred.
  • Whether a disability contributed to the offense or conduct.
  • Whether trauma, domestic or dating violence, sexual assault, stalking, human trafficking, duress, or other similar factors contributed to the offense or conduct.
  • The age of the applicant when the conduct occurred.
  • The amount of time that has passed since the conduct underlying the conviction, which may significantly predate the conviction itself.
  • The amount of time that has passed since the applicant’s release from incarceration.
  • The specific duties of the job, including whether the context in which the conviction occurred is likely to arise in the workplace and whether the type or degree of harm that resulted from the conviction is likely to occur in the workplace.

The addition of these considerations compels employers to resist making hasty decisions based on limited facts. For example, you have made an offer for a driver position and the background check shows a conviction for vandalism. Your first thought may be, “We don’t want to hire someone who has no respect for private property! Rescind the offer”. However, after further research you find that when the applicant was 19 she was being stalked by her boyfriend and she pierced his tires to keep him from following her. Different story, different assessment.

Criminal convictions can have many nuances and employers need to understand the whole story before adhering to black-and-white policies. SDEA consultants can help you examine the circumstances to make a well thought out decision.

At SDEA we are not just here for you, we are HeRe with you. 858.505.0024 

Contact us: 858.505.0024