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California’s Civil Rights Department (CRD) recently issued draft revisions to the Fair Employment and Housing Act (FEHA) regulations governing the use of criminal history in employment decisions. The updated revisions were made after receipt of public comments. Although the last written comment period ended on December 30, 2022 and the CRD has not yet scheduled the Council’s next meeting, employers should review and consider what changes they will need to make to their background check procedures. The following are key changes being considered.
Prohibition of Consideration Prior to Conditional Offer. An employer cannot consider criminal history prior to making a conditional offer even if the applicant volunteered the information about their criminal history. There is a limited exception if the employer or their agent is required by law to conduct a criminal background check.
Denial of Employment Due to Conviction History. The CRD clarified that the applicant’s possession of a benefit, privilege, or right required in order to perform the job by a licensing, regulatory, or government agency or board, does not demonstrate that the conviction history directly and adversely relates to the duties of job. Additional factors were also added as consideration for the “nature and gravity of the offense or conduct,” “time that has passed since the offense or conduct and/or completion of the sentence,” and “nature of the job held or sought.”
Evidence of Rehabilitation or Mitigating Circumstances. If an applicant voluntarily provides evidence of rehabilitation or mitigating circumstances before or during the initial individualized assessment of whether the criminal history directly and adversely relates to the duties of the job, that evidence must be considered as part of the initial individualized assessment. If after the employer provides notice of a preliminary decision to disqualify, then the applicant can submit such evidence optionally and voluntarily. An employer cannot refuse to accept such additional evidence voluntarily provided by an applicant at any stage of the hiring process.
- Review the proposed regulations here and here.
- Review job applications, offer letters, background check guidelines, and pre-adverse action notices for potential revisions.
- Continue to look for updates on the proposed revisions.
- Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase