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The California Civil Rights Council ("Council") has been revising the Fair Employment and Housing Act’s regulations regarding how employers may consider a job applicant’s criminal history during the hiring process. Recently, the Office of Administrative Law approved the Council’s proposed revisions, and the new regulations will go into effect on October 1, 2023.
The new regulations mainly clarify current obligations, but also impose a few additional requirements.
Expanded Definitions
“Applicant” now includes “existing employees who have applied or indicated a specific desire to be considered for a different position with their current employer.”
“Employer” now includes “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.”
Prohibition of Consideration of Criminal History Prior to a Conditional Offer of Employment
Employers, with limited exceptions, do not have a legal obligation to check the criminal history of an applicant or current employee; however, if they choose to do so, they must abide by the legal limitations described in the regulations.
If a state, federal, or local law requires another entity (e.g., occupational licensing board) to conduct a criminal background check, that will not suffice to exempt the employer from the prohibitions “in this subsection and other requirements of this section.”
Employers cannot put statements in job advertisements, postings, applications or other materials that persons with criminal history will not be considered for hire, such as “No Felons” or “Must Have Clean Record.”
If an applicant volunteers information about their criminal history before receiving a job offer, the employer may not consider any such information until after it has decided whether to make a conditional employment offer.
Requirements if an Employer Intends to Deny Employment Conditionally Offered Because of the Applicant’s Conviction History
The regulations provide additional considerations regarding the individualized assessment an employer must undertake before it can rescind a conditional job offer based solely or in part on the applicant’s conviction history, such as:
- the specific personal conduct of the applicant that resulted in the conviction;
- whether the harm was to property or people;
- the degree of harm;
- the permanence of the harm;
- the context in which the offense occurred;
- whether a disability, including but not limited to a past drug addiction or mental impairment, contributed to the offense or conduct;
- whether trauma, domestic violence, sexual assault, stalking, human trafficking, duress, or other similar factors contributed to the offense; and/or
- the age of the applicant when the conduct occurred.
After an employer notifies an applicant in writing of a preliminary decision to disqualify based on the applicant’s conviction history and offers the opportunity to submit evidence of rehabilitation or mitigating circumstances, any such evidence must be optional and may only be provided by the applicant voluntarily.
Evidence of rehabilitation or mitigating circumstances the employer may consider includes, but is not limited to:
- whether the conviction led to incarceration, the applicant’s conduct during incarceration, including “participation in work and educational or rehabilitative programming and other prosocial conduct”;
- the applicant’s employment history since the conviction or completion of sentence;
- the applicant’s community service and engagement since the conviction or completion of sentence, including but not limited to volunteer work for a community organization, engagement with a religious group or organization, participation in a support or recovery group, and other types of civic participation; and/or
- the applicant’s other rehabilitative efforts since the completion of sentence or conviction or mitigating factors not captured in the above sub factors.
An employer may not refuse to accept additional evidence voluntarily provided by an applicant at any stage of the hiring process and may not require an applicant to submit any of the additional evidence described above.
The Work Opportunity Tax Credit
An employer participating in the Work Opportunity Tax Credit (“WOTC”) must maintain the job applicant’s WOTC forms, documents, or information in confidential files separate from the applicant’s general personnel file and may not use or disseminate these forms.
In light of these changes, employers that consider criminal history during the hiring process should reach out to their legal counsel for a review of all of their policies and procedures to ensure they are legally compliant. As always, we are available to answer any questions and for all your employment-related needs. Please call your firm contact at (818) 508-3700 or visit us online at www.brgslaw.com.
Sincerely,
Richard S Rosenberg
Katherine A Hren
Jessica A. Gomez
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