Effective October 10, 2024, employers in the unincorporated areas of San Diego County are required to comply with the new Fair Chance Ordinance restricting the use of criminal history for employment decisions. This new ordinance piggybacks on the State of California’s Fair Chance Act (FCA) enacted in 2018 and the Los Angeles County Fair Chance Ordinance adopted earlier this year.
San Diego County’s Fair Chance Ordinance applies to businesses with five or more employees and includes employees performing at least two hours of work on average each week within the unincorporated areas of the county, as well as those performing remote work from a location within the unincorporated areas of the county.
As with the State FCA, the San Diego County Ordinance prohibits employers from the following:
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Asking about or considering an applicant’s criminal history, including questions on job applications, prior to a conditional offer of employment
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Including questions about criminal convictions prior to a conditional offer of employments
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Considering information about arrests not followed by conviction, participation in pretrial or post-trial diversion programs that have been completed and the underlying pending charges or conviction dismissed, sealed, or eradicated; or convictions that have been sealed, dismissed, expunged, or statutorily eradicated.
If a criminal background check reveals a criminal history, the ordinance requires the same individualized assessment that the FCA requires prior to a rescission of a job offer; however, the assessment must be in writing. Additionally, employers are required to retain all records related to the employment application for one year following the submission of the application. Employers are also prohibited from filling the position during the five-day response period following the rescission of a job offer, absent exigent circumstances.
Furthermore, where the FCA allows a carve-out for employers that are required to conduct background checks pursuant to state or federal law, this ordinance does not have that carve-out. So, even if the business is required by state or federal law to conduct a background check, and the state or federal law contains specific restrictions on criminal history in a certain industry, employers must still go through the individualized written assessment prior to rescinding a job offer based on that background check.
The San Diego County Office of Labor Standards and Enforcement is charged with investigating complaints of violations, and noncompliance can result in administrative penalties up to $20,000 per violation for repeat violations.
Covered employers will need to prepare for these requirements as the preliminary notice requirements under the statewide Fair Chance Act are not sufficient to meet the employer’s obligations under the San Diego County Ordinance. Employers Council’s California Legal Services Team can assist you in navigating this new ordinance if you hire employees in the unincorporated areas of San Diego and provide recommendations for compliance. Please contact our team at CAinfo@employerscouncil.org.
Mary Miller is an attorney for Employers Council.