?Employers that rely on criminal background checks to vet candidates know all too well that they must comply with a legion of statutes, ordinances, and regulations. On Dec. 15, 2022, the Civil Rights Council of the California Civil Rights Department released its latest draft revisions to the Fair Employment and Housing Act (FEHA) regulations that govern employers’ use and consideration of criminal history in employment decisions.
The following summarizes the primary changes in the latest round of proposed modifications to the FEHA regulations regarding criminal history. As it stands, the changes are likely to be adopted in full.
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.
Evidence of rehabilitation or mitigating circumstances that the employer may consider includes:
- Whether the conviction led to incarceration.
- The applicant’s conduct during incarceration, including participation in work and educational or rehabilitative programming and other prosocial conduct.
- The applicant’s employment history since the conviction or completion of sentence.
- The applicant’s community service since the conviction or completion of sentence, including engagement with a religious group, participation in a support or recovery group, and other types of civic participation.
- The applicant’s other rehabilitative efforts since the completion of sentence or conviction or mitigating factors not captured in the above subfactors.
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.
Expanded Definitions
The council proposed expanded definitions of the following key terms for purposes of section 11017.1 only:
- Applicant includes “existing employees who have applied or indicated a specific desire to be considered for a different position with their current employer.”
- Employer includes “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.”
The above proposed modifications were subject to a 15-day written comment period, which ended on Dec. 30, 2022. The schedule for the council’s next meeting in 2023 has not yet been publicly released.
In light of these impending changes in California, employers that use criminal records to vet candidates should consider a privileged review of all of the various policies, procedures, and other documents related to the screening process (e.g., job applications, offer letters, guidelines for recruiters, adjudication standards, pre-adverse action notices, etc.). With the proliferation of new laws and ordinances, it is more important than ever for employers to keep abreast of developments regarding this topic nationwide.
Rod M. Fliegel and Alice H. Wang are attorneys with Littler in San Francisco.
