California Employers: Your Online Job Advertisements Could Get Your Business in Hot Water

By Marjorie Clara Soto, Christopher A. Braham, and Maria C. Rodriguez of McDermott Will & Emery

The California Department of Fair Employment and Housing (DFEH) announced a new affirmative effort to detect and correct violations of the Fair Chance Act (FCA)—California’s ban-the-box law—by using online technology to identify words and phrases in job advertisements that violate the FCA. The FCA was first enacted on January 1, 2018, to prohibit employers with five or more employees from asking job candidates about their conviction history before making them a job offer.

IN DEPTH

On October 20, 2021, the DFEH?announced ?a new effort to enforce the FCA by using online search tools to capture statements in job advertisements that violate it, sending more than 500 notices to employers in violation in just one day. The DFEH indicated that it is documenting these violations and has provided an online?toolkit ?as a resource for employers. “Using technology to proactively find violations of the state’s anti-discrimination laws is a powerful strategy for our department to protect Californians’ civil rights,” Kevin Kish, director of the DFEH, said.

The DFEH also provided the following examples of statements it deems in violation of the FCA and should not be present in job advertisements:

• No Felons
• Must Have Clean Record
• Any other blanket statements indicating that an employer will not consider anyone with a criminal history

The DFEH made it clear that it will “continue to monitor job advertisements” in compliance with the FCA and encourages individuals to report discriminatory job advertisements or file complaints with the DFEH. Possible consequences for violating the FCA include actual damages for injuries or losses, (including back pay and loss of future income); compensatory damages for pain, suffering, humiliation, and emotional distress; punitive damages and attorneys’ fees and court costs.

IMMEDIATE ACTION

To ensure compliance with California law and to avoid DFEH scrutiny, McDermott recommends that all employers immediately review their job applications, background check forms and onboarding documents with experienced employment counsel, including:

• Job advertisements and applications
• Background check disclosure and authorization forms (under the Fair Credit Reporting Act, the California Investigative Consumer Reporting Agencies Act, the California Consumer Credit Reporting Agencies Act and others if you hire outside of California)
• State and local ban-the-box notices (City of Los Angeles, City and County of San Francisco and others if you hire outside of California)
• Vendor agreements (including with third-party background check providers, job application and hiring software and online job search engines)

McDermott’s employment team is available to assist businesses with developing practical solutions for addressing questions related to job applications and onboarding documents and processes.