San

01 San Covered employers in the County must now comply with both the county’s SDFCO in addition to the state’s FCA.

To Whom Does the SDFCO Apply?

The new ordinance applies to positions that involve performing at least two hours of work on average each week within the unincorporated

areas of San Diego County for a covered employer. A This The If a covered employer “intends to [1]deny

…

mployment, transfer, or promotion” based on criminal history, the employer must conduct a written individualized assessment evaluating whether the criminal history “has a direct and adverse relationship with the specific duties that justify” the decision, and follow a county-specific pre-adverse action letter process.[e] Finally, covered employers must retain all records related to employment applications for at least one year and must provide these records to the Office of Labor Standards and Enforcement (OLSE) or the applicant upon request.What Is Different Between the FCA and the SDFCO?Although there are many similarities between California’s FCA and the County’s SDFCO, there are several noteworthy differences:[2]While the FCA requires an individualized assessment of whether the applicant’s criminal history has a “direct and adverse relationship with the specific duties” that justifies denying the applicant the position, the SDFCO imposes the additional requirement that the individualized assessment be

written

.

• In addition to the individualized written assessment, if a covered employer decides that an applicant’s criminal history disqualifies them from employment, transfer, or promotion, the SDFCO requires that covered employers must notify the applicant in writing. The The SDFCO does not provide exemptions similar to the State FCA.
• Enforcement and PenaltiesThe ordinance grants the OLSE substantial enforcement powers, including investigating violations, imposing escalating monetary penalties (up to $5,000 for a first violation, $10,000 for a second, and $20,000 for third and subsequent violations), and recommending suspension or revocation of business licenses for noncompliance. The OLSE is also directed to issue rules clarifying employer violations.However, the OLSE cannot issue fines under the SDFCO until July 1, 2025.
• Next Steps for Covered Employers

Considering the detailed requirements regarding the timing of background checks, the content of notices, and the need for individualized written assessments, employers should review their hiring, recruitment, and personnel policies and documents to ensure they comply with federal, state, and local regulations. Covered employers may also want to consider implementing training regarding the SDFCO for any personnel working in recruiting, in human resources, or on any hiring committee.

FOOTNOTES

Unincorporated areas of San Diego County are regions that are not part of any city but fall under the jurisdiction of the County of San Diego for local governance. Residents Ordin 1, Ch. 27, Sec. 21.2704.