Reminder: New Criminal History Consideration Regulations for California Employers Effective October 1, 2023

As previously reported, California employers must now adhere to updated changes in the Fair Employment and Housing Act (FEHA) concerning the use of criminal history information in employment.

With limited exceptions, California employers must refrain from checking the criminal histories of applicants or current employees until after making a conditional offer of employment. Information about criminal convictions disclosed voluntarily by an applicant should not be considered before extending a job offer. If an employer decides to deny an applicant or employee an opportunity based on criminal conviction history, they must conduct an individualized assessment that considers:

  • The nature and gravity of the offense or conduct;
  • The time passed since the offense and/or completion of the sentence; and
  • Whether the conviction history directly and adversely impacts the specific duties of the job for which the applicant is applying.

Following the initial individualized assessment, if the employer preliminarily decides that the conviction history disqualifies the applicant, they must provide written notification to the applicant. The notice must include:

  • The conviction(s) that are the basis for the decision;
  • A copy of the conviction history report utilized by the employer;
  • Notification of the applicant's right to respond to the notice before a final adverse decision is declared;
  • An explanation informing the applicant that if they respond, their response may include evidence either challenging the accuracy of the report or any rehabilitative or mitigating circumstances; and
  • Notification of the deadline by which the applicant must respond if they choose to do so.

Employers who fail to comply with these new regulations risk receiving complaints and potential fines. Those who use criminal records for employee screening are strongly encouraged to review all policies and procedures with legal counsel to ensure compliance with the evolving landscape of criminal background screening.

Source: California Code of Regulations

Posted: October 2, 2023

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This document and/or presentation is provided as a service to our customers. Its contents are designed solely for informational purposes, and should not be inferred or understood as legal advice or binding case law, nor shared with any third parties. Persons in need of legal assistance should seek the advice of competent legal counsel. Although care has been taken in preparation of these materials, we cannot guarantee the accuracy, currency or completeness of the information contained within it. Anyone using this information does so at his or her own risk.

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