Sometimes the California legislative and rulemaking processes feel like the 1993 movie “Groundhog Day,” where the same day repeats over and over again. The California Department of Fair Employment and Housing Council’s (FEHC) efforts to adopt regulations concerning criminal history checks is one good example.
Back in 2016, the FEHC proposed its first round of criminal background check regulations. The Office of Administrative Law (OAL) approved these regulations, which took effect on July 1, 2017, just as the California Legislature was considering its own changes on employer criminal background checks. Governor Brown signed AB 1008, which addresses how employers may use prior criminal history information in employment decisions.
When the law went into effect on January 1, 2018, California employers had to make sweeping changes on how they conduct criminal background checks. The “ban-the-box” bill:
- Eliminates questions about criminal history and applicant consent to conduct criminal history checks on employment applications;
- Prohibits criminal background checks until after a conditional offer of employment; and
- Creates notification requirements.
California law was now very much out of sync with the FEHC’s newly enacted Department of Fair Employment and Housing (DFEH) regulations – so the FEHC went back to the drawing board.
In early 2018, FEHC started another round of rulemaking and proposed a revised set of criminal history regulations. These new proposed amendments to the Fair Employment and Housing Act (FEHA) also went through the same regulatory process and was submitted for approval to the OAL. However, unlike the 2017 amendments, the FEHC withdrew their proposed regulations, which means the rulemaking process must continue.
What does that mean for employers? The latest regulatory amendments are not approved and the FEHC must start, yet again, another round of rulemaking before a revised set of criminal history regulations are added to California’s collection of laws and regulations.