California’s Fair Chance Act (CFCA), implemented in 2018, prevents employers with five or more employees from asking job applicants about their conviction history before extending an employment offer. Now, San Diego County draws upon this legislation with its own Fair Chance Ordinance (SDFCO), which took effect Oct. 10, 2024.
The SDFCO applies to employers who conduct business in unincorporated areas of San Diego County — which is about 14,000 businesses, according to County data estimates. If an employer has made a conditional employment offer to an applicant and discovers the applicant’s criminal history after through a background check, the employer must adhere to the SDFCO if they wish to then rescind the conditional offer.
The SDFCO is more stringent than the overarching CFCA in that it requires employers to complete written individualized assessments for applicants that they intend to deny employment “solely or in part because of the Applicant’s Criminal History,” according to San Diego County Code title 2, div. 1, § 1, ch. 27 (2024). The SDFCO specifies that, to justify denial of employment, the written assessment must show that “one or more specific elements in the nature and gravity of the offense or conduct in the Applicant’s Criminal History have a direct and adverse relationship to one or more specific elements in the natures of the job held or sought.” Essentially, the employer must sufficiently demonstrate that the applicant’s criminal history would negatively affect their potential employment.
Further, employers must send a notice to the applicant outlining the conviction(s) that were the “basis for the preliminary decision to rescind the offer.” The applicant will then have five business days to respond to this notice, in which they can dispute the accuracy of the background check that led to the offer revocation. During these five days, the employer is prohibited from filling the open position, unless “exigent circumstances” apply.
Enforcement for the SDFCO violations begins on July 1, 2025, and the penalties are higher than those imposed in the CFCA: up to $5,000 for a first violation, up to $10,000 for a second and up to $20,000 for third and subsequent violations. Employers are required to retain all records related to the applicant’s employment, transfer or promotion applications, in addition to any written assessments and reassessments performed, for one year after receiving the initial application.
We strongly recommend all employers, especially those in the unincorporated areas of San Diego County, review, and possibly reform, their hiring and applicant screening processes to ensure compliance with this new ordinance. If you have any questions or want to discuss the implications of the SDFCO, please contact Shareholder Rose Huelskamp Serrano or Shareholder Katherine Fine of Duckor Metzger & Wynne, APLC’s Employment & Labor Law practice group.
DMW Case Assistant Adam Roppo co-wrote this article.