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California Amends Criminal History Regulations – Employer Action Required

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Effective October 1, 2023, California’s Consideration of Criminal History in Employment Decisions Regulations will significantly impact how employers may use criminal history information.

Definition Changes

Importantly, the amended Regulations change several definitions including that for employer and applicant.

  • Employer: includes a labor contractor and a client employer; any direct and joint employer; any entity that evaluates the applicant’s conviction history on behalf of an employer, or acts as an agent of an employer, directly or indirectly; any staffing agency; and any entity that selects, obtains or is provided workers from a pool or availability list.
  • Applicant: includes, in addition to the individuals within the scope of the general definition in section 11008(a) of these regulations, individuals who have been conditionally offered employment, even if they have commenced employment when the employer undertakes a post-conditional offer review and consideration of criminal history; existing employees who have applied or indicated a specific desire to be considered for a different position with their current employer; and an existing employee who is subjected to a review and consideration of criminal history because of a change in ownership, management, policy, or practice. An employer cannot evade the requirements of Government Code section 12952 or this regulation by having an individual lose their status as an “applicant” by working before undertaking a post-conditional offer review of the individual’s criminal history.

Criminal History Question

Employers may not inquire into, consider, distribute or disseminate information related to the criminal history of an applicant until after the employer has made a conditional offer of employment. This includes inquiring into criminal history through an employment application, background check, or internet searches.

Employers who inquire into criminal history prior to extending a conditional offer of employment (in violation of the Regulations) cannot use the applicant’s failure to disclose criminal history information prior to the conditional offer as a factor in subsequent employment decisions.

There are a few exceptions to this prohibition against inquiring into or using criminal history before a conditional offer (note: even if you fall under one of the included exceptions, other requirements in the Regulations apply). One of the exemptions is if the position is one that an employer (or employer’s agent) is required by any state, federal or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history. Notably, for this exemption, there are several qualifiers listed in the Regulations including that the employer actually be required by law to conduct the criminal background check. A law requiring another entity, such as an occupational licensing board, to conduct the criminal background check will not exempt an employer from the prohibitions above.

If an applicant voluntarily provides their criminal history prior to receiving a conditional offer, the employer must not consider any information they are otherwise prohibited from considering. In addition, the employer cannot consider any other conviction history information until after extending a conditional offer (unless an exemption applies).

Postings and Prohibited Information

Employers may not include statements in job advertisements, postings, applications or other materials that no persons with criminal history will be considered for hire, such as “No Felons” or “Must Have Clean Record”.

The amended Regulations included the same types of criminal history information that employers may not consider such as non-convictions, sealed or expunged cases, or non-felony convictions for possession of marijuana that are two or more years old (please see the Regulations for the full list).

Individualized Assessment

If the employer intends to deny an applicant the conditionally offered position based solely or in part of the criminal history, the employer must first conduct an individualized assessment – a reasoned, evidence-based determination of whether the applicant’s criminal history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.

The Regulations outline what factors, at a minimum, must be considered by employers including: (i) the nature and gravity of the offense or conduct, (ii) the time passed since the offense or conduct and (iii) the nature of the job held or sought.

For each factor, the Regulations include examples of what may be evaluated. Employers must consider any evidence of rehabilitation or mitigating circumstances provided by the applicant, or another party at the applicant’s request, before or during the initial individualized assessment.

Adverse Action

If, after conducting an initial individualized assessment, the employer makes a preliminary decision that the applicant’s conviction history disqualifies the applicant, the employer shall notify the applicant of this preliminary decision in writing. The written notice may, but is not required to, justify or explain the employer’s reasoning for making the decision. The notice must include:

  • Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision;
  • Copy of the conviction history report (including the consumer report);
  • Notice of the applicant’s right to respond before the preliminary decision becomes final;
  • An explanation that, if the applicant chooses to respond, the response may include submission of either or both of the following: evidence challenging the accuracy of the conviction history report, or evidence of rehabilitation or mitigating circumstances.
  • Notice of the deadline for the applicant to respond (see further information below).

Employers should review the Regulations for an extensive listing of examples of evidence of rehabilitation or mitigating circumstances. Any such information is optional for the applicant to provide. Employers may not refuse to accept additional evidence voluntarily provided, require an applicant to submit additional evidence or a specific type of documentary evidence, require an applicant to disclose their status as a survivor of domestic or dating violence, sexual assault, etc., or require an applicant to produce medical records or disclose the existence of a disability or diagnosis.

The notice of the deadline for the applicant to respond must be at least five (5) business days from the “date of receipt” of the notice. “Date of receipt” is calculated based on the method of sending. If notice does not provide a confirmation of receipt (such as a tracked delivery) then the notice will be deemed received: (i) for email, two (2) business days after it is sent; (ii) for mail, five (5) calendar days after delivery for California addresses, ten (10) calendar days for outside of California address and twenty (20) calendar days for outside of the US addresses. Employers are encouraged to consult with legal counsel whether receiving a bounce back or other undeliverable notice associated with email should start a new “date of receipt” calculator when resending the notice via mail.

If the applicant timely notifies the employer that the applicant is disputing the accuracy of the information, then the applicant must be provided at least five (5) additional business days to respond before the decision may become final.

The employer must then conduct a reassessment if provided information by the applicant before making a final decision whether or not to rescind the conditional offer. There are a number of factors employers may consider during this reassessment process included within the Regulations.

If a final decision is made to rescind the conditional offer, the employer must notify the applicant in writing. Such notice must include:

  • The final decision reached which may include (but is not required to include) the justification or explanation of the employer’s reasoning for reaching the decision;
  • Any procedure the employer has for challenging the decision or request reconsideration; and
  • The right to contest the decision by filing a complaint with the Civil Rights Department.

The employer may, but is not required to, use the sample individualized assessment form and notification templates available on the Civil Rights Department website. Sample forms may be found here: https://calcivilrights.ca.gov/fair-chance-act/fca-forms/.

Note: there are a number of additional changes covered within the Regulations, such as requirements related to the Work Opportunity Tax Credit, not addressed here. Please review the Regulations in full and consult with qualified legal counsel.

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