Hunton Employment & Labor Perspectives

On October 20, 2021, the California Department of Fair Employment and Housing (“DFEH”) issued a press release to announce its plans to use unspecified technology to conduct online searches for statements in job advertisements that violate the Fair Chance Act (“FCA”). According to the DFEH, during a one-day review, it was able to locate over 500 job advertisements that violated the FCA because they stated that the employer would not consider job applicants with criminal records.

California is just one of approximately 36 states and 150 municipalities that have adopted “ban the box” laws, which generally prohibit employers from inquiring into an applicant’s criminal conviction history prior to extending a conditional offer of employment. However, it appears to be the first to use technology to enforce the laws. Some states do not provide specific mechanisms for enforcement of ban the box laws, and those that do usually rely on individuals to file reports with a state agency if they believe that an employer has violated the law.

The DFEH’s “search engine” approach to enforcement will likely prove to be problematic for employers for several reasons. First, it is unclear how the search technology works, so it is impossible to know whether it contains programming flaws that will pull lawful job postings into its sweep. Moreover, the DFEH does not specify whether employers will automatically face a charge if the technology flags a job posting, or whether the posting will be subject to human review first.

Given the uncertainty surrounding the DFEH’s FCA enforcement technology, employers should be especially cautious when drafting online postings. The DFEH provides a toolkit that employers can use when drafting job descriptions; however, prudent employers should work with their labor and employment counsel to ensure compliance given the DFEH’s heightened enforcement efforts.