San Diego County Law Adds New Background Check Hurdles for Employers

Key Points:

• San Diego County has enacted a Fair Chance Ordinance that further regulates background checks.
• The law creates new obligations for employers in unincorporated areas of San Diego County.
• The law took effect October 10, but penalties for violations will not be imposed before July 1, 2025.

San Diego County is the latest California county to enact its own Fair Chance Ordinance, the SDFCO. The law applies only in unincorporated areas of San Diego County. The law took effect October 10, but financial penalties for noncompliance do not go into effect until July 1, 2025.

Requirements

• Written Individualized Assessment

California law already requires employers to conduct individualized assessments when evaluating criminal history. The SDFCO adds a requirement to conduct this assessment in writing. There is no requirement to provide the applicant with a copy of the written assessment.

• Pre-Adverse Action Letter

Employers subject to the SDFCO will need to modify or supplement their pre-adverse action letters. The SDFCO requires that applicants be notified at the pre-adverse action stage of the right to file a complaint with the California Civil Rights Department (CRD) and the County of San Diego Office of Labor Standards and Enforcement (OLSE). Oddly, the SDFCO requires this notice only at the pre-adverse action stage, even though no final decision would have been made yet. The SDFCO does not add any requirements for post-adverse action notices.

Under the SDFCO, if an applicant requests additional time to respond to the pre-adverse action letter, employers must provide an additional five business days.

During the pre-adverse action notice period, an employer must not fill the open position, except in “exigent circumstances.”

• Recordkeeping

Records demonstrating compliance, including written assessments, must be retained for one year.

• Other

The SDFCO includes several other requirements that are redundant with obligations already imposed under California or federal law. The scope of this alert is limited to new obligations.

• Enforcement

The OLSE will enforce the SDFCO. There is no private right of action.

Starting July 1, 2025, the OLSE may impose penalties of up to $5,000 per aggrieved applicant for a first violation, up to $10,000 for a second violation and up to $20,000 for further violations. At least half of any penalty imposed will be given to the applicant.

Changes Needed To Comply

1. Employers must update their pre-adverse action notices to add a notice of the right to file a complaint with the CRD and the OLSE.
2. Employers must perform individualized assessments of criminal history in writing.
3. If an applicant requests additional time to reply to the pre-adverse action notice, employers must allow an additional five business days.
4. Employers must not fill the open position while the pre-adverse action response period is pending, absent exigent circumstances.

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