Advocating for the Rights of the Formerly Incarcerated Under the Fair Chance Act

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Bay Area Legal Aid attorneys submitted public comments this month on the Fair Chance Act, a California law that prevents employers from asking about a person’s conviction history during the job application process. BayLegal applauded the protections the Act extends to formerly incarcerated individuals while also urging the Department of Fair Employment and Housing (DFEH) to go further to ensure that people with conviction records have a fair chance at reentry.

When working with formerly incarcerated individuals, BayLegal attorneys have found that clients rarely know about the Fair Chance Act. Moreover, statistics documenting types of DFEH complaints suggest that much needs to be done to raise people’s awareness of their rights under the Act. In addition, the Act also has significant gaps. Although it bars employers from considering criminal histories during the initial application process, it does not prevent employers from drawing inferences about a person’s criminal history based on other information in their application. BayLegal clients have also reported employers who have asked about conviction histories during interviews or when responding to application inquiries. Lastly, under the Act, employers can still withdraw conditional offers of employment after doing a background check on a person’s conviction history.

In their comment, BayLegal attorneys recommended ways to remedy these problems. These include requiring language on all employment applications informing applicants of their rights under the Fair Chance Act, mandating trainings for all employers covered by the Act, and holding workshops in partnership with community organizations to increase awareness of the Act. They also recommended strengthening enforcement of the Act through proactive investigation and requiring employers to document individualized assessments of why they withdraw conditional job offers. These small changes are necessary to ensuring that the Fair Chance Act provides community members who have been incarcerated to find gainful employment and establish economic stability.