The FCO applies to work performed in the unincorporated areas of San Diego County.1 To determine if a workplace or job site falls within an unincorporated area of San Diego County, visit the county’s online portal.

Since 2018, California law also “bans-the-box” and imposes requirements on how employers obtain and use criminal history. You must comply with both the FCO and state law. For more information about the state law, see Restrictions on Obtaining Criminal History.

The FCO covers applicants seeking employment and current employees seeking transfer or promotion, who perform at least an average of two hours of work weekly within the unincorporated areas, including remote work.2 The FCO prohibits private employers in the county from inquiring into a job applicant’s criminal history before making a conditional offer of employment to the applicant.3

Employers can use one of the following job applications:

• Employment Application - Long Form
• Employment Application - Long Form - Spanish
• Employment Application - Short Form
• Employment Application - Short Form - Spanish

Neither the FCO nor the state law limit your ability to choose the most qualified and appropriate candidate among the applicants for a particular job. Neither require you to hire or give preference to an unqualified individual with an arrest or conviction record.

You can find more information regarding the county’s employment related local ordinances at its website. You can also contact the county’s Office of Labor Standards and Enforcement (OLSE) at (619) 531-5129.

Employers Covered Under the Ordinance

The FCO applies to employers who are:

• Located or doing business in the unincorporated areas of San Diego County; and
• Have five or more "employees."

4 An “employee” means a person who performs at least two hours of work on average each week within the geographic boundaries of San Diego County (including remote work).5

Entities that evaluate an employee’s or applicant’s criminal history on behalf of an employer or acts as an agent of the employer are also considered employers under the FCO.6

The FCO establishes minimum requirements pertaining to the protection of applicants. “Applicant” means an individual seeking a position which involves performing at least two hours of work on average each week within the unincorporated areas of the county.7

Restrictions on Obtaining Criminal History

The FCO places restrictions on when and how you can obtain an applicant’s criminal history.8 With limited exception, employers cannot:

• Mention restrictions based on conviction or arrest in a job posting, unless such limitation is required by law.9
• Ask questions on an employment application seeking the disclosure of an applicant’s criminal history. 10
• Ask about or consider an applicant’s criminal history until after making a conditional employment offer.11
• Take any adverse action — such as termination, demotion, etc. — against an applicant based on their criminal history until after making a conditional offer of employment.12
• Inquire about or use particular types of information during a background check (similar to those prohibited by state law, discussed below).13
• Interfere with the exercise of any rights under the FCO.14

You may ask an applicant to complete hiring forms before a conditional offer of employment if the information is only used to apply for hiring incentives for individuals with conviction histories. You must keep these forms and any related documents in confidential files, separate from the applicant's personnel file, and cannot use or share them for any other purpose except applying for those incentives.15

California Law

State law also prohibits considering criminal history prior to making a conditional employment offer, even if the applicant voluntarily discloses it. To comply with both the San Diego FCO and the state law, never consider criminal history of any applicant prior to making a conditional offer of employment.

Under the state law, there are certain “off-limits” inquiries. Employers can’t seek information about:

• A referral to or participation in a pre-trial or post-trial diversion program;
• Convictions that have been sealed, dismissed, expunged or statutorily eradicated;
• Juvenile convictions, subject to certain exceptions for health care facilities; or
• An arrest not resulting in a conviction, subject to certain exceptions for health care facilities.

You may ask about arrests for which the applicant is out on bail or on their own recognizance pending trial, but don’t make such inquiries before a conditional employment offer. For more information, see Restrictions on Obtaining Criminal History.

Obtaining Criminal History Reports

Once you have made a conditional employment offer to an applicant, you may obtain a criminal history report.

• You must continue to follow state and federal law regarding obtaining criminal history and conducting criminal background checks. State and federal law mandate criminal background checks in certain industries. For more information, see Obtaining Criminal History.

If there is a conflict, state and federal requirements supersede the FCO’s requirements. If you have questions about the applicability of federal or state law, please consult with legal counsel.

Before obtaining a copy of any background check report, you must also comply with all federal and state notice requirements, such as those under the federal Fair Credit Reporting Act (FCRA) and the California Investigative Consumer Reporting Agencies Act (ICRAA). For more information, see Obtaining Investigative Consumer Reports.

Employer Assessment of Criminal History Information

You may not take adverse action against an applicant, such as withdrawing a conditional employment offer or refusing or failing to employ an applicant, based on an applicant’s criminal history unless you have performed a written individualized assessment and complied with the fair chance notice requirements under the FCO and state law.16

Written Assessment

A written assessment must effectively link the specific aspects of the applicant’s criminal history with risks inherent in the duties of the position sought by the applicant. In performing the written assessment, you must consider the factors identified by the FCO and the United State Equal Employment Opportunity Commission (EEOC) Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions (the Enforcement Guidance). These factors include:

• The nature and gravity of the offense or conduct;
• The time since the offense, conduct and/or completion of the sentence; and
• The nature of the job held or sought.17

The individualized assessment must show that one or more specific elements of the offense or conduct in the applicant's criminal history directly and negatively relate to specific elements of the job held or applied for.18

For more information, see Restrictions on Obtaining Criminal History.

The state law requires an individualized assessment, but does not require that it be in writing. Employers subject to the FCO should follow the stricter local standard and prepare a written assessment.

Fair Chance Notice Requirements

Both the FCO and state law require an opportunity for an applicant to provide information or documentation regarding the accuracy of their criminal history report or other information that to consider before any adverse action is taken against the applicant based on their criminal history, such as evidence, rehabilitation or other mitigating factors.19

If you intend to withdraw or rescind a conditional offer of employment or take any other adverse action after performing the written individualized assessment, you must provide the applicant with a preliminary notice. This notice must contain:

• A statement of the conviction(s) that led to the preliminary decision to withdraw the offer;
• A copy of the criminal background check report or other source of the information;
• A notice informing the applicant of their right to file a complaint with the
• County of San Diego Office of Labor Standards and Enforcement (OLSE) for violation of the county's FCO, and with the state's Civil Rights Department for violation of the Fair Chance Act; and
• An explanation of the applicant's right to respond to the employer's preliminary decision before it becomes final, including the deadline to respond, and a statement that the applicant can provide evidence disputing the accuracy of the background check report, evidence of rehabilitation, or mitigating circumstances.20

You must also comply with FCRA and ICRAA notice requirements. For more information, see Obtaining Investigative Consumer Reports.

The FCO also requires all county services contracts to include a term stating that a violation of the FCO shall constitute a material breach.21

You must give the applicant at least five business days to respond. If the applicant notifies you, within this period, that they dispute the accuracy of the conviction and are taking steps to provide supporting information, both state law and the FCO require you give the applicant an additional five business days to submit this information22.

You may not finalize the adverse action or fill the position sought by the applicant during this period unless exigent circumstances require it.23

You must consider information submitted by the applicant before making a final decision about whether to hire the applicant.

If you make a final decision not to hire the applicant based in whole or in part on the conviction history, state law requires that you again give written notice to the applicant. State law requires your final notice include any existing procedure you have for challenging the decision and the applicant’s right to file a complaint with the Department of Fair Employment and Housing. For more information, see Obtaining Investigative Consumer Reports.

Exceptions

The FCO doesn’t prohibit employers from asking an applicant about, seeking information from any source regarding, or taking adverse action based on an applicant's “particular conviction” if federal or state law prohibits the employer from hiring someone with that conviction. However, employers must still follow the fair chance processes, including written individualized assessments and notices, for these positions.24

A “particular conviction” is a conviction for specific criminal conduct or a category of criminal offenses outlined in federal or state laws or regulations that impose requirements or exclusions based on that specific conduct or category of offenses.25

State law has broader exceptions. Employers with questions about exceptions to the FCO and/or the state law should consult counsel.

Recordkeeping Requirements

You must keep all records and documents related to an applicant's employment, transfer or promotion applications, as well as any written assessments or reassessments conducted under this article, for one year after receiving the applicant's employment application.26

Upon request, employers must provide or give access to these records and documents to OLSE in any administrative enforcement proceeding of the FCO or to the applicant.27

Enforcement

The OLSE enforces the FCO. An applicant or employee alleging that an employer has violated the FCO may report the alleged violation to the OSLE within one year of the alleged violation. The OLSE may conduct investigations and take administrative action to enforce the FCO.28

If the OLSE determines that an employer violated the FCO, the OLSE may issue a written notice to the employer requiring the employer to immediately cure the violation.29 The OLSE may also issue an administrative penalty of up to $5,000 for the first violation, up to $10,000 for the second violation and up to $20,000 for the third and any subsequent violations.30 The OLSE will assess the amount of penalties issued against an employer based on the following factors:

• The severity of the violation;
• The existence of prior or contemporaneous violations the FCO;
• The employer's size, including both the total number of employees and business revenue; and
• Whether or not the employer knew or should have known about the FCO.31

The OSLE may also revoke or suspend an employer’s license with the county for violations of the FCO.32

1. San Diego County Code sec. 21.2702(i)