From the law offices of Hutton Andrews Kurth
September 2023
California employers: take notice. On July 24, 2023, the Office of Administrative Law approved changes to the Fair Employment and Housing Act (FEHA) regulations governing how California employers can use and consider criminal history in employment decisions. These new changes, modifying Cal. Code Regs. Tit. 2, § 11017.1, go into effect on October 1, 2023.
While these revisions do not fundamentally change the existing law, they do add to California’s already complex rules and regulations regarding the use of criminal background checks. As such, it is vital for employers to be aware of these regulations, in order to update their employee hiring procedures and reduce the risk of unsuspectingly violating the law in the hiring process.
Listed here are some of the key provisions of the regulations, including both existing provisions and new provisions contained in the October 1, 2023 updates:
Except in very specific circumstances (such as when the position is one for which an employer is required by law to conduct a criminal background check or where the employer is a state or local agency), California employers may not inquire into, consider, distribute, or disseminate information related to the criminal history of an applicant until after making a conditional offer of employment. This prohibition includes, but is not limited to, inquiring about criminal history through an employment application, background check, or even internet searches.
Under the October 2023 updates, employers are also expressly prohibited from including statements in job advertisements, postings, applications, or other materials that no person with criminal history will be considered for hire, such as “No Felons” or “Must Have Clean Record.”
Employers who violate the prohibition on inquiring into criminal history prior to making a conditional offer of employment may not, after extending a conditional offer of employment, use an applicant’s failure to disclose criminal history prior to the conditional offer as a factor in subsequent employment decisions, including denial of the position conditionally offered.
Even if an applicant voluntarily discloses their criminal history before receiving a conditional offer of employment, the employer may not consider that information until after making a conditional offer of employment. Note, however, there are certain categories of information an employer may never consider when making a hiring decision, including but not limited to:
an arrest that did not result in conviction, a referral to or participation in a pretrial or post-trial diversion program (unless offered by the applicant as evidence of rehabilitation or mitigating circumstances);
a conviction that has been judicially dismissed or expunged;
an arrest or detention that occurred while a person was subject to a juvenile court of law; or
non-felony convictions for possession of marijuana that are two or more years old.
If an employer intends to rescind a conditional offer of employment based on an applicant’s conviction history, the employer is required to first make 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 the applicant the position. The current law identifies three factors that must be considered as part of this individualized assessment: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense or conduct and/or completion of the sentence; and (3) the nature of the job held or sought. The revised regulations add new considerations to these three factors. For example, the new regulations state that the “nature and gravity of the office or conduct” factor may include, but is not limited to:
The specific personal conduct of the applicant that resulted in the conviction;
Whether the harm was to property or people;
The degree and permanence of the harm;
The context in which the offense occurred;
Whether a disability (including past drug addiction or mental impairment) contributed to the offense or conduct and, if so, the likelihood of harm arising from similar conduct;
Whether trauma, domestic or dating violence, sexual assault, stalking, human trafficking, duress, or other similar factors contributed to the offense or conduct; and/or
The age of the applicant when the conduct occurred.
If, after conducting an initial individualized assessment, the employer makes a preliminary decision to withdraw a job offer based on the applicant’s criminal history, the employer must notify the applicant of the preliminary decision in writing. Under the new regulations, the applicant is given a right to respond to the notice with evidence challenging the accuracy of the conviction history report used by the employer and/or evidence of rehabilitation or mitigating circumstances. Note that while the new regulations provide guidance on the type of evidence an applicant may submit, the decision of whether to submit evidence and what kind of evidence to submit is entirely up to the applicant. An employer cannot require the applicant to provide a specific type of documentary evidence (or any type of evidence, at all) or disqualify the applicant for failure to provide any specific type of documents or evidence.
An employer is required to consider any information or evidence submitted by the applicant before making a final decision on whether or not to rescind the conditional offer of employment. The updated regulations provide a non-exhaustive list of factors for the employer to consider when making this final decision, such as the applicant’s conduct during incarceration (if incarcerated), the applicant’s employment history since the conviction or completion of sentence, and the applicant’s community service and engagement. Once an employer makes a final decision to rescind a conditional offer an deny an application based on an applicant’s conviction history, the employer must notify the applicant in writing.
Further, the new regulations expand the definition of “applicant” to include not only new applicants, but also existing employees who have applied for or indicated a desire to be considered for a different position with their current employer as well as employees subjected to criminal history review because of a change in ownership, management, policy or practice.
Finally, the new regulations are clear that these prohibitions apply to direct and joint employers, entities that evaluate applicants’ conviction history on behalf of an employer, anyone acting as an agent of an employer, a staffing agency, and any entity that selects, obtains, or is provided workers from a pool of availability list.
With the recent updates ready to take effect on October 1, 2023, now is the ideal time for employers to review and update their hiring procedures and ensure that all human resources and recruiting personnel are properly trained on both the existing and updated provisions in the law. Any California employer who uses and considers criminal history in the hiring process should work with their legal counsel to ensure that their hiring procedures are up-to-date and fully compliant with the law.
