In keeping with the recent proliferation of fair chance legislation at the state and local levels, effective October 10, 2024, businesses with five or more employees who carry out business in unincorporated areas of San Diego County are subject to San Diego County’s Fair Chance Ordinance (“SDFCO”). The SDFCO prohibits unlawful pre-job offer inquiries about arrest and conviction histories of job applicants. Administrative penalty enforcement for violations of the SDFCO commences July 1, 2025.
Employment applicants whose primary job location averages two or more hours of work each week within an unincorporated area, including remote work done from an unincorporated area, are protected by this ordinance.
The SDFCO piggybacks on California’s Fair Chance Act (“FCA”), which prohibits employers with five or more employees from asking a job candidate about conviction history before making a job offer. Specifically, the FCA forbids employers from:
- including on a job application any questions about conviction history before a conditional job offer has been made;
- asking about or considering an applicant’s criminal history before a conditional job offer has been made; and
- 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.
After offering a job, the FCA permits an employer to conduct a criminal history check, but the law requires employers to make an individualized assessment of the conviction history and its relevance to the job being sought, in addition to potential mitigating factors. The employer cannot revoke the employment offer without considering the nature and gravity of the criminal history, the time that has passed since the conviction, and the nature of the job to which the candidate applied. If the employer revokes the job offer based on an applicant’s criminal history, the employer must so notify the applicant in writing, including by stating the disqualifying conviction, provide the applicant with a copy of any conviction history report the employer relied upon, and give the applicant five business days to respond. The employer must consider any information provided in an applicant’s response and thereafter notify the applicant in writing of any final disqualification, and the applicant’s right to file a complaint with the Civil Rights Department.
The SDFCO appears to impose greater restrictions than the FCA on employers in unincorporated areas of San Diego in that employers must complete individualized assessments in writing and may not, absent exigent circumstances, fill an open position during the five business day response period following a job offer revocation. Also, the SDFCO does not contain an explicit carve-out for employers required by state or federal law to conduct background checks. The SDFCO imposes greater administrative penalties than the FCA, in amounts as high as $20,000 per violation for repeat violations. The SDFCO requires employers to retain all records and documents related to an applicant’s employment applications and the written assessment and reassessment performed for one year following receipt of the application.
The SDFCO tasks the San Diego County Office of Labor Standards and Enforcement with, among other things, receiving complaints regarding violations of the SDFCO, investigating and obtaining records regarding reported violations, enforcing the SDFCO, and issuing administrative penalties for violating the SDFCO.
In general, this is a good time for all employers to review and update their employment applicant screening processes under the recent statewide and local government fair chance legislation. According to County data, San Diego County’s unincorporated areas are spread over wide swathes of the County and host 14,400 businesses. Employers will be wise to check the subtle reaches of the County’s geography to understand whether and how they are uniquely affected by this new, stricter ordinance.
