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October 1, 2023
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The California Civil Rights Department (CRD) recently issued its final rules modifying the Fair Employment and Housing Act (FEHA) regulations relating to criminal background checks. The following is a summary of the key changes.
Applicability. The definition of “applicant” is expanded to include existing employees who have already started working before the post-conditional offer review, applied for a different position with their current employer, or subject to review because of a change in ownership, management, policy or practice.
The definition of “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.”
Exemptions. An employer or its agent must be required by law to conduct the criminal background check in order to be exempt from waiting until after a conditional offer of employment is made. This exemption does not apply to any law requiring another entity (e.g., occupational licensing board) to conduct a criminal background check.
Voluntary Information. An employer cannot consider any criminal history voluntarily provided prior to making a conditional offer of employment that it would not otherwise be allowed to consider under FEHA (e.g., arrests, diversion program participation, expunged records), unless an exemption applies.
Individualized Assessment. The individualized assessment required before denying a conditional offer of employment based on criminal history was expanded. The assessment must include, among other things, the nature and gravity of the offense/conduct, time that has passed since the offense or completion of sentence, and nature of the job held or sought.
- The nature and gravity of the offense or conduct was clarified to include the following non-exhaustive factors: (1) the specific personal conduct of the applicant, (2) whether there was harm to people or property, (3) the degree of harm, (4) the permanence of harm, (5) the context in which the offense occurred, (6) whether a disability contributed to the conduct (e.g., past drug addiction or mental impairment) and if so whether the likelihood of harm arising from similar conduct either could be mitigated by a reasonable accommodation or has been mitigated by treatment, (7) whether trauma (e.g., domestic violence, sexual assault, stalking, human trafficking, duress, or other similar factors) contributed to the offense, and (8) the age of the applicant when the conduct occurred.
- The time that has passed since the offense or completion of sentence was clarified to include the time passed since the conduct underlying the conviction (which may predate the conviction itself), and/or the amount of time passed since release from incarceration.
- The nature of the job held or sought may include the following factors: (1) the specific duties of the job, (2) whether the context in which the conviction occurred is likely to arise in the workplace, and/or (3) whether the degree of harm that resulted from the conviction is likely to occur in the workplace.
If any evidence of rehabilitation or mitigating circumstances is voluntarily provided by the applicant or a third party at the applicant’s request before or during the initial individualized assessment, the employer must consider that information as part of the initial individualized assessment. This evidence may include (1) the length and consistency of employment history before and after the offense, (2) circumstances surrounding the offense, (3) the applicant’s participation in self-improvement efforts (e.g., school, job training, counseling, community service, rehabilitation), (4) whether trauma (e.g., domestic violence, sexual assault, stalking, human trafficking, duress, or other similar factors) contributed to the offense, (5) age of the applicant when the conduct occurred, (6) whether a disability contributed to the offense and if so whether the likelihood of harm or the disability can be or has been mitigated, (7) the likelihood that similar conduct will recur, (8) whether the applicant is bonded, (9) the fact that the applicant is seeking employment, and/or (10) successful completion or probation or parole. Evidence may be presented in the form of certificates of participation/enrollment/completion of a relevant program, letters from those who know the applicant, documentation from those who can attest to the applicant’s status as a survivor of domestic or sexual violence or similar offenses, documentation of the existence of a disability, or any other documentation showing rehabilitation or mitigating circumstances.
Employers cannot refuse to accept additional evidence voluntarily provided at any point prior to making a preliminary decision to rescind a job offer, require an applicant to submit any of the additional evidence at any time in the hiring process, require an applicant to provide a specific type of documentation, require an applicant to disclose their status as a survivor of domestic or sexual assault or comparable statuses, or require an applicant to produce medical records to disclose the existence of a disability or diagnosis.
Reassessment. During the reassessment process, an employer must consider any information provided by the applicant on whether or not to rescind a conditional offer of employment, including the applicant’s conduct during incarceration (if applicable), employment history since conviction or sentence completion, community service and engagement since the conviction or sentence completion, or other rehabilitative efforts, as well as the nature and gravity of the offense/conduct, time that has passed since the offense or completion of sentence, and nature of the job held or sought.
Job Denial. When reviewing an applicant’s criminal history, there must be a direct and adverse relationship that justifies denying the applicant the position. An applicant’s possession of a benefit, privilege, or right required for the performance of a job by a licensing, regulatory, or government agency or board is considered “probative” of the applicant’s conviction history not being directly and adversely related to the specific duties of that job.
- Review the final rule here.
- Update criminal history screening procedures for compliance.
- Have appropriate personnel trained on the updated requirements.
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