December 3, 2021

Volume XI, Number 337

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

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.

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)

© 2021 McDermott Will & EmeryNational Law Review, Volume XI, Number 300
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About this Author

Marjorie Clara Soto Associate  Los Angeles Employment
Associate

Marjorie Soto’s employment practice covers single-plaintiff litigation, wage and hour class litigation, employment counseling, and complex transactions. She defends employers in state and federal lawsuits alleging wrongful termination, discrimination, harassment, retaliation, violations of the FCRA, and wage and hour violations. She is also experienced in dealing with trade secret, confidentiality, non-compete, and non-solicit matters in employment contracts. Marjorie has specialized experience working with clients in the food service, retail, healthcare, materials science &...

310-788-4126
Christopher A. Braham Attorney Employment Litigation McDermott Will Emery Los Angeles
Partner

Christopher A. Braham focuses his practice on employment litigation and counseling.

Christopher represents employers in all stages of employment litigation, including in putative class action, single and multi-plaintiff lawsuits concerning claims for meal and rest period violations, failure to pay wages and bonuses, off-the-clock work, misclassification, discrimination, retaliation, wrongful termination and misappropriation of trade secrets. Christopher advocates for clients in state and federal courts and administrative agencies, including in...

310-788-6008
Maria Rodriguez Employment Lawyer McDermott Will Emery Law Firm
Partner

Maria C. Rodriguez advises US and international corporations with regard to employment law compliance and mergers and acquisitions; and defends employment cases and class action litigation. She is a trusted advisor to clients helping them avoid or resolve disputes and protect resources through proactive and strategic planning. She is experienced working with clients in the sports, media and entertainment, technology, food and restaurant, airline, transportation and distribution, health care and fashion industries.

 

She advises on and defends against class, collective,...

310-788-1586
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