(Source: CDF Labor Law LLP by Leigh A. White – August 9, 2023)

Changes to the Fair Employment and Housing Act (FEHA) regulations that govern how employers can use information about criminal history in employment decisions go into effect on October 1, 2023. These revised regulations modify California Code of Regulations Title 2, Section 11017.1. The new regulations add to the already long list of procedures that must be followed when a California employer is going to use criminal history as a basis for rejecting an applicant or taking other adverse actions against an applicant or employee. It will be very easy for employers to be in violation if they are not careful to adhere to this new regulation.


California employers should be aware of the key provisions of the regulations, considering they are new, will be effective October 1, and some are already applicable. Employers with employees in California should ensure that HR and recruiting personnel are properly trained on these procedures:


  • Employers and other covered entities (“employers” for ease of reference) are prohibited from inquiring into (including through job applications, background checks, or Internet searches), considering or disseminating information about an applicant’s criminal history, until after the employer makes a conditional offer of employment. A law that requires an entity, other than the employer (such as an occupational licensing board) to conduct a criminal background check, does not exempt the employer from these regulations.


  • There are certain exceptions to this requirement, including positions with state or local agencies that are required by law to conduct a criminal history check, for positions with a criminal justice agency, for certain defined Farm Labor Contractors, and for positions where the employer is required by law to conduct criminal background searches, or restrict employment based on criminal history or other specified laws.


  • These prohibitions apply to new applicants, existing employees who have applied for or indicated a specific desire to be considered for a different position, and existing employees who are subject to a review and consideration of criminal history because of a change in ownership, management, policy, or practice. An applicant is also an individual who can prove that he or she has been deterred from applying for a job by an employer’s or other covered entity’s, alleged discriminatory practice. An employer cannot evade this requirement by having the applicant start working before the post-conditional offer review of criminal history.


  • These prohibitions apply to direct and joint employers, entities that evaluate applicant criminal history information on behalf of an employer, anyone acting as an agent of an employer, a staffing agency, and any person/entity that selects, obtains, or provides workers (who perform work in the employer’s usual course of business) or maintains a pool or availability list of workers.


  • If an applicant voluntarily discloses information about their criminal history before a conditional offer, the employer cannot consider any information volunteered that is prohibited by the regulations, until after an employer has decided whether to make a conditional employment offer.


  • An employer may require applicants to complete an IRS form 8850 or equivalent (forms used to see if potential employees are members of a targeted group, for purposes of qualifying for work opportunity credits) and before a conditional offer of employment is made, as long as the information from the form is used solely to apply for the Work Opportunity Tax Credit.


  • California employers remain strictly prohibited from considering certain types of criminal convictions at any time. This includes arrest/detention not leading to conviction, referral/participation in a diversion program, dismissed/sealed/expunged/statutorily eradicated convictions, certain juvenile matters, and non-felony marijuana convictions over two years old, etc.


  • If an employer preliminarily decides to deny an applicant after the conditional offer based on the conviction history (in whole or part), the employer must first conduct an individualized assessment and make a “reasoned, evidence-based determination” of whether the conviction history has a “direct and adverse relationship with the specific duties of the job, that justify” denying employment that is “job-related and consistent with business necessity.” The individualized assessment should include, at a minimum:


    • The nature and gravity of the offense or conduct, including the specific conduct of the applicant, whether there was harm to property or people, the degree and/or permanence of the harm, the context of the offense, whether a disability (including drug addiction or mental impairment) contributed, whether certain traumas contributed, and age at time of conduct.


    • The time that has passed since the offense and/or completion of the sentence.


    • The nature of the job.


  • If the applicant submits evidence of rehabilitation or mitigating circumstances, before or after the individualized assessment, the employer must consider that evidence.


  • If, after the individualized assessment, the employer makes a preliminary decision to revoke the conditional offer, the employer must notify the applicant in writing of the preliminary decision. The notice must include all of the following:


    • Notice of the conviction(s) that were the basis for the preliminary decision


    • A copy of the information used/relied on for the decision (defined broadly including reports and news articles)


    • Notice that the applicant or someone acting on the applicant’s behalf has the right (but is not required) to respond before the decision becomes final, including to challenge the accuracy of the information and/or to submit evidence of rehabilitation, and/or mitigating circumstances and notice of the deadline to respond. The deadline may be no less than five business days after receipt of the notice. Notice by e-mail is considered to be received two business days after it is sent.


    • If the applicant timely notifies the employer in writing that additional time is needed to respond, the applicant must be given at least five additional business days to respond to the notice, and before the employer’s preliminary decision becomes final.


  • The employer must notify the applicant of any final decision to rescind the offer in writing and must include information regarding available procedures to challenge the decision, and the right to contest the decision by filing a complaint with the California Civil Rights Department.


  • Even if the employer shows that its policy or practice of considering conviction history is job-related and consistent with business necessity, adversely impacted persons may still try to allege a violation of FEHA by claiming that there is a less discriminatory policy or practice that serves the employer’s goals as effectively as the challenged policy or practice without significantly increasing the cost or burden on the employer.


California employers are subject to these and many additional requirements when considering the criminal history of applicants and employees that may not be required in other jurisdictions. Our workplace safety, labor law, and human resource experts here at CalWorkSafety & HR can help ensure your workplace policies and training procedures are up to date, and include the latest in these ever-changing, and often complicated, regulations. Contact us today.