In July 2023, the California Civil Rights Department (CRD) approved revised regulations relating to the use of criminal history in employment decisions under California’s Fair Chance Act. After the Office of Administrative Law reviews and approves the regulations, they’re set to take effect on October 1, 2023. Employers should look at their criminal background check procedures and make any changes necessary to make them compliant with the latest revisions. Here’s a brief update on what employers should keep in mind.
The good news is the revised regulations don’t change the existing rules’ fundamental framework regarding the consideration of criminal history, rather they add clarifications, examples and additional considerations to the existing rules — placing particular emphasis on the individualized assessment process and consideration of the applicant’s response, including the types of rehabilitation and mitigating circumstances evidence.
Under the Fair Chance Act, California employers with five or more employees may not ask about criminal history at any point before a conditional job offer is made. In addition to prohibiting any related questions on job applications, the revised regulations add that employers may not publish any statements in advertisements or job postings that suggest they won’t hire anyone with a criminal conviction — for example, “applicants must have a clean record” or “no felons.”
The revised regulations also expand on the individualized assessment process. Under the law, after a conditional job offer is made and a background check reveals an applicant’s criminal history, employers must engage in an individualized assessment to determine if the conviction has a direct adverse effect on the applicant’s ability to perform their job duties. Existing regulations direct employers to consider, at a minimum, the following three factors:
- The nature and gravity of the criminal offense;
- The time elapsed since conviction; and
- The nature of the position.
The revised regulations add potential considerations for each factor above. For example, the regulations specify that consideration of the nature and gravity of the criminal offense can include the applicant’s specific personal conduct that led to the conviction, whether the harm was to property or people, the type of harm, the context of the crime and other considerations. The other two factors also have additional criteria for employers to consider.
After completing the individualized assessment, an employer may consider withdrawing the conditional job offer and send the applicant a preliminary notice to that effect with information about the applicant’s right to respond and submit information challenging the conviction history and/or submitting evidence of rehabilitation or mitigating circumstance. The revised regulations provide more examples of the types of evidence applicants may provide, including letters of reference, documentation of completed programs (rehabilitation, school, counseling, community service, etc.), police reports, documentation of a disability and others.
If an applicant submits a timely response to an employer’s preliminary notice of withdrawal, employers must consider all information submitted by the applicant. The revised regulations expand the context around this reassessment, encouraging employers to consider additional factors such as the applicant’s conduct during incarceration, community service and engagement since the conviction or completion of the sentence, and other rehabilitative efforts or mitigating factors.
Notably, the revised regulations also clarify that the Fair Chance Act not only applies to outside applicants but also to existing employees who are seeking a different position with their current employer, as well as those who are subject to a criminal history screening during employment due to a change in management or policy.
Employers should review their criminal background check procedures to ensure it complies with the regulations — paying particular attention to how they conduct their individualized assessments and review of any evidence and/or response submitted by the applicant during the process. Consult with legal counsel before making a final decision not to hire an applicant if there’s not a clear conflict between a criminal conviction and the position’s specific duties.
James W. Ward, Employment Law Subject Matter Expert/Legal Writer and Editor
CalChamber members can use the Notice of Preliminary Decision to Withdraw Employment Offer – Criminal History Only and Criminal Background Screening Checklist on HRCalifornia. Not a member? Learn how to power your business with a CalChamber membership.
