The California Office of Administrative Law recently approved the Civil Rights Council’s amendments to regulations in the Fair Employment and Housing Act (“FEHA”). The updated regulations govern how employers with five or more employees can use criminal history information when making employment decisions. The revised regulations were effective on October 1, 2023.
This article summarizes revised regulations California employers should be aware of.
New Definitions
- The term “employer” now includes “any entity that evaluates the application’s conviction history on behalf of an employer, or acts as an agent of an employer, directly or indirectly.” This expanded definition could potentially implicate a background screener conducting a background check on behalf of an employer.
- The definition of “applicant” now includes existing employees who have applied for or expressed interest in a different position with the employer or whose criminal histories are reviewed because of a change in ownership, management, policy, or practice.
Consideration of Criminal History Prior to a Conditional Offer of Employment
Under existing law, before making a conditional job offer, an employer is prohibited from inquiring about criminal history unless required by law.
Employers can’t say in job postings, on applications, or in other hiring materials that individuals with criminal histories won’t be hired. This includes statements like “no felons” or “must have a clean record.”
If an applicant voluntarily discloses their criminal history, employers cannot consider that information until after a conditional job offer is made (assuming the record can be considered at all).
Requirements if an Employer Intends to Deny an Applicant the Employment Conditionally Offered Because of the Applicant’s Criminal History
Under existing law, after extending a conditional job offer, if an employer intends to deny an applicant the job based on their criminal history, the employer must perform an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying employment.
The fact that a licensing, regulatory, or government agency board has licensed an applicant—despite their criminal history—should be considered strong evidence that their criminal history is not grounds for disqualification from that type of job.
Regarding an employer’s initial individualized assessment, the revised regulations specify that it must be “a reasoned, evidence-based determination.”
In addition, existing regulations provided three main factors that employers are required to consider for the individualized assessment:
- Nature and gravity of the offense.
- Time that has passed since the offense or conduct.
- Nature of the job held or sought.
Employers can, but don’t have to, use the sample notices provided by the California Civil Rights Department when communicating with applicants about employment decisions based on criminal history.
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