Update Applicable to:	Effective date
All employers with 5 or more employees located or doing business in the unincorporated areas of San Diego County	October 10, 2024 – Immediately   July 1, 2025 – Penalty Enforcement

What happened?

On September 10, 2024, the San Diego County Board of Supervisors adopted the County Fair Chance Ordinance (SDFCO), which restricts criminal background checks and mandates compliance with new requirements.

Quick Summary:

• The SDFCO aims to provide greater employment opportunities for individuals with criminal histories by restricting when and how employers can inquire about and use criminal background information.

• It requires employers to wait until after a conditional job offer to ask about criminal history and mandates an individualized assessment before taking adverse action based on that history.

What are the details?

Key Points:

• Timing of Criminal History Inquiries: Employers can only inquire about an applicant’s criminal history after making a conditional job offer and cannot include conviction history questions on job applications beforehand.

• Job Advertisements: Employers cannot disqualify applicants with criminal histories in job postings or declare any limitations due to convictions or arrests unless required by law.

• Individualized Assessment: Before rejecting an applicant based on criminal history, employers must conduct a written, individualized assessment of the offense’s nature, gravity, timing, and job relevance, but they do not need to share this assessment with the applicant.

• Notice Process: If an employer takes adverse action based on criminal history, they must follow a two-step notice process, inform applicants of their right to file a complaint, and keep the position open during the consideration period unless there are urgent circumstances.

• Record Retention: Employers must keep all records and documents related to an applicant’s employment applications and assessments for one year.

• Penalties: Starting July 1, 2025, employers can face civil penalties for non-compliance ranging from $5,000 to $20,000 per violation.

• Scope and Coverage: The FCO covers remote workers and employees seeking promotions who work at least two hours weekly in unincorporated areas, and it does not exempt employers required by law to conduct background checks.

• Prohibited Actions: Employers cannot ask about criminal history on job applications before a conditional offer, take adverse action based on criminal history before a conditional offer, or consider prohibited information about arrests, diversion programs, or sealed/expunged convictions unless required by law.

• Definitions: several definitions are included in the act to clarify the application and coverage:
  • Employer: Entity with five or more employees in unincorporated San Diego County.
  • Applicant: An individual applying for a job, transfer, or promotion, working at least two hours weekly in unincorporated areas.
  • Employee: Individual working at least two hours weekly in unincorporated areas.
  • Employment: Work for an employer’s business in unincorporated areas, including remote work.
  • Criminal History: Information regarding one or more convictions or arrests.

Business Considerations

• Employers should review and update job applications, postings, and company policies to comply with the SDFCO and exclude impermissible inquiries regarding criminal records.
• Employers should inquire about an applicant’s criminal history only after making a conditional job offer, exclude conviction history questions from job applications, and avoid disqualifying applicants with criminal histories in job postings unless required by law.
• Employers should conduct a written, individualized assessment of the offense before rejecting an applicant based on criminal history.
• Employers should follow a two-step notice process for adverse actions based on criminal history:
  (1) inform applicants of their right to file a complaint and
  (2) keep the position open during the consideration period.
• Employers should retain all records related to an applicant’s employment applications and assessments for one year.
• Employers should train recruiters, hiring personnel, and those involved in background checks to ensure compliance with the SDFCO.

Source References

• San Diego County’s Fair Chance Ordinance (SDFCO) – Ordinance 10914 
• County of San Diego Incorporated and Unincorporated

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