Regulatory Alert: Updated Regulations on Employer Use of Criminal History in Hiring in effect October 1, 2023
We recently reported that the California Civil Rights Department approved updated regulations on employers’ use of criminal history in their hiring processes. The time has now come for these amendments, found in Title 2, sections 11017 and 11017.1 of the California Code of Regulations, to go into effect.
Starting October 1, 2023, the updated regulations are in essence an interpretation of the 2018 Fair Chance Act, which generally prohibits employers with five or more employees from asking about a job applicant’s conviction history before making a conditional job offer, requires specific procedures for considering an applicant’s criminal history after a conditional job offer, and limits convictions that employers can consider disqualifying to those that have a direct relationship with job responsibilities. For instance, blanket statements in job advertisements indicating that an employer will not consider anyone with a criminal history, such as “No Felons” or “Must Have Clean Record,” violate the law’s protections. The Fair Chance Act requires that employers consider an applicant’s criminal history on an individual basis and provide an opportunity for an applicant to respond to a withdrawn offer with evidence of rehabilitation or mitigating circumstances.
The new amendments to the regulations are designed to clarify for employers this existing law with clear examples to provide more guidance as they choose new members for their workforce. The following are some key highlights of the updated regulations.
The definition of “employee” has been expanded. Previously the Fair Chance Act was interpreted to only apply to applicants or current employees seeking a position within the company. The term “applicant” now also includes an employee who submits to a background check where a change in ownership, a change in management, or a change in policy or practice has occurred. The definition of “employer” has also been broadened. “Employer” now includes not only direct employers, but also those acting as agents or evaluating an applicant’s criminal history on behalf of an employer, staffing agencies, and entities obtaining workers from a pool or availability list.
Criminal History and the Application Process Clarified
It is clear that California law prevents questioning applicants about their criminal past, with the exception of positions in law enforcement or certain areas of government. The updated regulations now provide more guidance.
- Language has been added that makes clear that employers violate the FEHA when they include certain statements on job advertisements or application forms that undermine the individualized assessment (such as “no felons” or “must have clean record”).
- During the application process, the amended regulations provide that any criminal history conveyed by the applicant may not be used by the employer until after a conditional job offer has been made.
- Certain categories of an applicant’s criminal past may never be used, even if offered up by the applicant himself or herself. These include arrests without convictions or referrals to or participation in pre-trial or post-trial diversion programs.
Revoking a Conditional Job Offer Involves an Individualized Assessment
Once a conditional position has been offered, the regulations already in place require that the employer conduct a three-pronged individualized assessment should the employer intend to deny the applicant a job based on criminal past: (1) nature and gravity of the offense; (2) time elapsed since the offense or conduct and/or completion of the sentence; and (3) the nature of the job held or sought.
The amended regulations now enhance the three prongs with further explanations and examples to assist the employer:
Consideration of the nature and gravity of the offense may include but is not limited to:
- The specific personal conduct of the applicant that resulted in the conviction;
- Whether the harm was to property or people;
- The degree of the harm (e.g., amount of loss in theft);
- The permanence of the harm;
- The context in which the offense occurred;
- 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;
- Whether trauma, domestic or dating violence, sexual assault, stalking, human trafficking, duress, or other similar factors contributed to the offense or conduct; and/or
- The age of the applicant when the conduct occurred.
Consideration of the time elapsed 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
Consideration of the nature of the job held or sought 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
When an Employer Intends to Withdraw a Job Offer Due to Criminal History
Under current law, if the employer decides to revoke the job offer due to the applicant’s criminal past, the applicant has the chance to respond with evidence challenging the accuracy of the conviction history report that is the basis for the decision to rescind the offer or evidence of rehabilitation or mitigating circumstances.
The amended regulations now provide more detail as to what applicants can include in their responses. Employers are prohibited, however, from requiring documentary evidence or disqualifying an applicant from the employment conditionally offered for failing to provide any specific type of documents or other evidence.
The rules also now give employers extra guidance for reassessment of the situation after having received the applicant’s response challenging the accuracy of the criminal history report used by the employer to make his or her decision.
Although these amended regulations are now filled with additional guidance, they have also made this area of the law more complex and potentially overwhelming. However, there are important tools available to help ease the burden. The California Civil Rights Department’s website has some handy resources available to ensure compliance, including FAQs, sample forms, sample compliance statements, and coming soon: interactive training on the Fair Chance Act.
Employers should review their hiring procedures and make changes if necessary to account for the new updates. If these regulations apply to your workplace, contact Rosasco Law Group, APC if you need assistance maneuvering your way through the rules.