08/22/2023
On July 24, 2023, the Office of Administrative Law approved the California Civil Rights Council’s proposed modifications to the regulations applicable to employer use of criminal history, which are effective October 1, 2023.
The information below has been provided as an overview of the additional responsibilities for employers in California. This should not be interpreted as legal advice. We advise all employers to consult with an employment attorney in their state.
For many years, California employers have been subject to the state’s Fair Chance Act, which (in a nutshell) requires employers to:
wait until after a conditional offer of employment to inquire about or consider criminal history;
conduct an individualized, job-related assessment before rejecting an applicant due to criminal history; and
follow a two-step notice process if action is taken based on the criminal history, which is similar, but not identical, to the Fair Credit Reporting Act’s notice requirements (and applicable even if the criminal history was not discovered from a FCRA consumer report (e.g., self-disclosure, internet search, etc.)).
On July 24, 2023, the Office of Administrative Law approved the California Civil Rights Council’s proposed modifications to the regulations applicable to employer use of criminal history, which are effective October 1, 2023.
We set out below the key changes that may require California employers to review and modify their practices relating to use of criminal history in hiring and other employment decisions.
Employers remain prohibited from requesting and using criminal history information until after a conditional offer of employment. This prohibition also applies to current employees in the context of decisions regarding promotion, training, discipline, lay-off, or termination. The regulations clarify that the definition of “applicant” now includes “an existing employee who is subject to a review and consideration of criminal history because of a change in ownership, management, policy or practice.”
Employers cannot put anything in a job advertisement or posting that indicates a person with a criminal history will not be considered.
Unless an exception applies, if an individual volunteers information about their criminal history before receiving a conditional offer, the employer may not consider the information until after it has decided whether to make a conditional employment offer.
To be continued in comments!!
