As of October 10, 2024, certain employers located or doing business in the unincorporated areas of San Diego County must adhere to the San Diego County Fair Chance Ordinance (“SDFCO”) and California’s Fair Chance Act (“FCA”). Given key differences between the SDFCO and FCA, employers are urged to ensure that job postings, applications, offer letters, and other documents comply with the SDFCO as the County can begin issuing fines for noncompliance starting July 1, 2025. Fortunately, the County has provided a “San Diego Employer Hiring Toolkit,” which includes compliance templates, job offer letters, individual assessment forms, and more.

For background, the FCA—a “ban the box” law—went into effect on January 1, 2018 and generally prohibits employers with five or more employees from asking about an applicant’s conviction history before making a job offer. The County designed the FCO to complement the FCA but also imposes new requirements and penalties on covered employers. By enacting the SDFCO, San Diego County joins several other local jurisdictions in enacting their own ban the box laws.

The SDFCO applies to the following employers and individuals:

(1) any employer located or doing business in the unincorporated areas of San Diego County with five or more employees;

(2) any entity that that evaluates an applicant’s or employee’s criminal history on behalf of an employer or acts as an agent of employer; and

(3) employees (including remote employees) or applicants applying for employment, transfer, or promotion to a position that involves performing at least two hours of work on average each week within the unincorporated areas of San Diego County.

The SDFCO prohibits covered employers from asking about an applicant’s criminal history until after a conditional job offer is made. It also restricts employers from advertising limitations due to criminal history in job postings and including criminal history questions on job applications before making a conditional offer.

If an employer plans to deny an applicant employment, transfer, or promotion solely or in part because of the applicant’s criminal history, the employer must make a written individualized assessment of whether the applicant’s criminal history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.

In making such an assessment, covered employers must consider all of the following: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense or conduct and completion of the sentence; and (3) the nature and duties of the job held or sought. The SDFCO does not, however, require employers to provide this written assessment to the applicant.

The SDFCO also details a specific pre-adverse action process that involves notifying an applicant of the preliminary decision that an applicant’s criminal history is disqualifying and allowing the applicant to respond to the notice. Covered employers must hold the position open during this process unless exigent circumstances require immediately filling the position.

Covered employers must retain records related to employment applications for at least one year and provide these records to the County’s Office of Labor Standards and Enforcement (“OLSE”) or the applicant upon request.

The ordinance grants the OLSE significant enforcement powers, such as investigating violations; issuing subpoenas for documents and examinations; imposing increasing monetary penalties (up to $5,000 for a first violation, $10,000 for a second, and $20,000 for third and subsequent violations); and recommending suspension, revocation, or denial of business licenses for noncompliance. The OLSE is not authorized to issue any monetary penalties until July 1, 2025, which gives employers time to comply with the SDFCO without the threat of a monetary penalty.

There are key differences between the SDFCO and FCA. Although the FCA requires an individualized assessment of whether an applicant’s criminal history directly and adversely relates to the job, the SDFCO mandates that this assessment be written. If an employer determines that an applicant’s criminal history disqualifies them from employment, transfer, or promotion, the SDFCO requires employers to provide written notice that differs from the notice required by the FCA. And, unlike the FCA, the SDFCO does not include any exemptions from its individualized assessment requirement.

We strongly recommend that employers affected by the SDFCO use this opportunity to review their hiring, recruitment, and personnel policies and documents to ensure they comply with applicable federal, state, and local laws regarding the use of criminal history in employment decisions. Employers should also ensure that any third parties involved in their hiring process are aware of these laws.

If you have questions about how this new Ordinance will affect your business or need advice about how to implement these new requirements, please contact us.

• Erik Johnson (ejohnson@wilsonturnerkosmo.com)
• Katie M. McCray (kmccray@wilsonturnerkosmo.com)

Wilson Turner Kosmo’s Special Alerts are intended to update our valued clients on significant employment law developments as they occur. This should not be considered legal advice.