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Background checks (71)

Employment Screening (20)

The California Fair Employment and Housing Council issued in June 2022, proposed amendments to Title 2, Section 11017.1 (Consideration of Criminal History in Employment Decisions). A summary of the initial proposal from June 2022 and the December 2022 modifications to that proposal are found on a blog, Upcoming Changes in California’s Law Regarding Criminal Background Checks. It appears that the comment period closed on Dec. 30, 2022. No FEHC meeting in 2023 has been posted yet.

The California Fair Employment and Housing Council is part of the California Department of Fair Employment of Housing (DFEH), the state agency that enforces California’s civil rights laws. The Council has statutory authority to pass regulations, hold hearings, and issue reports to advance civil rights in California.

The blog summarizes the December 2022 modifications:

The council seeks to clarify that, with limited exceptions, employers have no legal obligation to check the criminal histories of applicants or current employees. If employers choose to do so, they must abide by the legal limitations set forth in the regulations. Individuals with claims under the Fair Chance Act may file a complaint for the department to investigate or may obtain an immediate right-to-sue notice.

Only when an employer is required by law to conduct criminal background checks can any of the exceptions to the prohibition against inquiring about or using criminal history apply. If a state, federal, or local law requires another entity (such as an occupational licensing board) to conduct a criminal background check, that will not suffice to exempt the employer from the prohibitions in the law.

If an applicant volunteers information about their criminal history before receiving a job offer, the employer may not consider any such information until after it has decided whether to make a conditional employment offer.

The council proposed additional considerations for the individualized assessment an employer must perform when it considers rescinding a conditional offer of employment based on the applicant’s conviction history. In determining what constitutes a “direct and adverse relationship” that warrants rescinding the conditional offer, the council clarified that an 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 is “probative” of the conviction history’s not being directly and adversely related to the duties of the job. The council also added specific factors to consider for each of 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” prongs of the individualized assessment.

To the extent an applicant voluntarily provides evidence of rehabilitation or mitigating circumstances, it must be considered as part of the initial individualized assessment. After an employer notifies an applicant in writing of a preliminary decision to disqualify based on the applicant’s conviction history and offers the opportunity to submit evidence of rehabilitation or mitigating circumstances, any such evidence must be optional and may only be provided by the applicant voluntarily.

An employer may not refuse to accept additional evidence voluntarily provided by an applicant at any stage of the hiring process; require an applicant to submit any of the additional evidence; require an applicant to provide a specific type of documentary evidence; or require an applicant to disclose the existence of a disability or their status as a survivor of domestic or dating violence, sexual assault, stalking, or comparable statuses.

Documents:

The California Fair Employment and Housing Council is part of the California Department of Fair Employment of Housing (DFEH), the state agency that enforces California’s civil rights laws. The Council has statutory authority to pass regulations, hold hearings, and issue reports to advance civil rights in California.