Modifications to California Fair Employment and Housing regulation on Criminal History in Employment Decisions

August 18th, 2023 | Chris Christian, Director of Compliance

In December 2022, the California Civil Rights Council proposed modifications to California’s Fair Employment and Housing Act which regulates employer’s considerations of conviction history in employment decisions. The proposed modifications to the regulation were approved on July 24^th, 2023, by the Office of Administrative Law and are set to become effective on October 1^st, 2023.

The modifications provide clarity to the existing regulation while also adding a few notable additions to the law. The approved modifications are related to, most notably and among other things, the consideration of conviction history prior to a conditional offer of employment, what employers must do when they intend to deny an applicant employment conditionally offered because of the applicant’s conviction history, and definitions used in the regulation.

Prohibitions of the Use of Criminal History in Employment Decisions

The recent changes provide further clarification and some new additions that employers are:

• Prohibited from inquiring about criminal history through an employment application, background check, or internet searches.
• Prohibited from including 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.”
• Prohibited against inquiring or using any criminal history before a conditional offer of employment has been made.

If an applicant raises their criminal history voluntarily prior to receiving a conditional offer, the employer must not consider any information the employer is prohibited from considering. In addition, an employer is prohibited from considering any other conviction history information until after making a conditional offer of employment, unless an exemption to the prohibition against inquiring about or using criminal history applies.

Exemptions

The employer’s restrictions on the inquiry and consideration of criminal history do not apply in the following circumstances:

• If the position is one for which an employer is otherwise required by law to conduct a conviction history background check where the employer is a state or local agency
• If the position is with a criminal justice agency
• If the position is as a farm labor contractor
• If the position is one that an employer or an 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.

Requirements if an Employer Intends to Deny an Applicant the Employment Conditionally Offered Because of the Applicant’s Conviction History

The modified regulations now provide employers with additional clarity when conducting the individualized assessment process by providing numerous examples of evidence to consider. If an employer intends to deny an applicant the employment position they were conditionally offered based solely or in part on the applicant’s conviction history, the employer must first conduct an initial individualized assessment on 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 individualized assessment must be conducted before the sending of the notice of preliminary decision.

The individualized assessment must include, at a minimum, consideration of the following factors:

• The nature and gravity of the offense or conduct. Consideration of this factor may include but is not limited to:
  • (I) The specific personal conduct of the applicant that resulted in the conviction
  • (II) Whether the harm was to property or people
  • (III) The degree of the harm (e.g., amount of loss in theft)
  • (IV) The permanence of the harm
  • (V) The context in which the offense occurred
  • (VI) Whether a disability, including but not limited to a past drug addiction or mental impairment, contributed to the offense or conduct, and if so, whether the likelihood of harm arising from similar conduct could be sufficiently mitigated or eliminated by a reasonable accommodation, or whether the disability has been mitigated or eliminated by treatment or otherwise
  • (VII) Whether trauma, domestic or dating violence, sexual assault, stalking, human trafficking, duress, or other similar factors contributed to the offense or conduct; and/or
  •  (VIII) The age of the applicant when the conduct occurred
• The time that has passed since the offense or conduct and/or completion of the sentence. Consideration of this factor may include but is not limited to:
  • The amount of time that has passed since the conduct underlying the conviction, which may significantly predate the conviction itself; and/or
  • When the conviction led to incarceration, the amount of time that has passed since the applicant’s release from incarceration.
• The nature of the job held or sought. Consideration of this factor may include but is not limited to:
  • The specific duties of the job
  • Whether the context in which the conviction occurred is likely to arise in the workplace and/or
  • Whether the type or degree of harm that resulted from the conviction is likely to occur in the workplace

If an applicant voluntarily provides evidence of rehabilitation or mitigating circumstances before or during the initial individualized assessment it must be considered as part of the initial individualized assessment. Any such evidence of rehabilitation or mitigating circumstances is optional and may only be voluntarily provided by the applicant or by another party at the applicant’s request. Employers are prohibited from:

• Refusing to accept additional evidence provided by an applicant or by another party at the applicant’s request at any stage of the hiring process
• Requiring an applicant to submit any of the additional evidence at any time in the hiring process
• Requiring an applicant to provide a specific type of documentary evidence (e.g., a police report as evidence of domestic or dating violence), or disqualifying an applicant from the employment conditionally offered for failing to provide any specific type of documents or other evidence;
• Requiring an applicant to disclose their status as a survivor of domestic or dating violence, sexual assault, stalking, or comparable statuses and/or
• Requiring an applicant to produce medical records and/or disclose the existence of a disability or diagnosis

In terms of documentary evidence that may be provided by the applicant, the following items are optional but are not limited to:

• Certificates or other documentation of participation in, enrollment in, or completion of an educational, vocational, training., counseling, community service, or rehabilitation program, including in-custody programs
• Letters from current or former teachers, counselors, supervisors, co-workers, parole or probation officers, or others who know the applicant
• Police reports, protective orders, and/or documentation from healthcare providers, counselors, case managers, or victim advocates who can attest to the applicant’s status as a survivor of domestic or dating violence, sexual assault, stalking, or comparable offenses
• Documentation confirming the existence of a disability and/or
• Any other document demonstrating rehabilitation or mitigating circumstances

When employers are considering evidence of rehabilitation or mitigating circumstances, the employer may consider, but is not limited to, the following factors:

• 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 subfactors.

Adverse Action Notices and Applicant Response

If, after conducting an initial individualized assessment, the employer makes a preliminary decision that the applicant’s criminal history disqualified them from the employment conditionally offered, the employer must notify the applicant of the preliminary decision in writing. The preliminary notice must include all of the following:

• The disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer;
• A copy of the conviction history report utilized or relied on by the employer;
• Notice of the applicant’s right to respond to the notice before the preliminary decision rescinding the offer of employment becomes final;
• An explanation informing the applicant that, if the applicant chooses to respond, the response may include submission of either or both of the following types of evidence:
  • Evidence challenging the accuracy of the conviction history report that is the basis for the preliminary decision to rescinding the offer, or;
  • Evidence of rehabilitation or mitigating circumstances.
• Notice of deadline for the applicant to respond if the applicant chooses to do so.
  • The deadline for providing a response must be at least five business days from the date of receipt of the notice. An employer may offer an applicant more than five business days to respond to the notice regarding its preliminary decision.

If the preliminary notice is transmitted through a format that does not provide a confirmation of receipt, such as a written notice mailed by an employer without tracking delivery enabled, the notice will be deemed received:

• Five calendar days after the mailing is deposited for delivery for California addresses.
• Ten calendar days after the mailing for addresses outside of California.
• Twenty calendar days after mailing for addresses outside of the United States.
• If notice is transmitted through email, the notice shall be deemed received two business days after it is sent.

If the applicant timely notifies the employer in writing that the applicant disputes the accuracy of the conviction history being relied upon and that the applicant is taking specific steps to obtain evidence supporting the applicant’s assertion, then the applicant must be permitted no fewer than five additional business days to respond to the notice before the employer’s decision to rescind the employment offer becomes final.

Expanded Definitions

Some of the definitions of terms used in the regulation were expanded that specifically pertain only to section 11017.1:

• “Applicant” includes, in addition to the individuals within the scope of the general definition in section 11008(a) of 11 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.
• “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.
• “Client employer” means a business entity, regardless of its form, that selects workers from a pool or availability list, or obtains or is provided workers to perform labor within its usual course of business from a labor contractor.

Key Take Aways

Employers should consider having periodic legal review of their background screening policies and procedures. As California continues to evolve their background screening laws, employers should be mindful to monitor legislative and regulatory activities in the state. Employers hiring in California should review their current individual assessment policy and adverse action procedures with their legal counsel to ensure compliance.

The approved final text modifications can be found HERE.

Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.