By Jennifer L. Lippi, JD, SPHR, PHRca

California Employers have long been subject to the state’s Fair Chance Act, which among other things, requires employees to wait until a conditional offer of employment is made to inquire about or consider an applicant’s criminal history. On July 24, 2023, the Office of Administrative Law approved the California Civil Rights Council’s proposed modifications to the regulations surrounding employer use of criminal history. The revised regulations are effective October 1, 2023.

Here are the highlights of what employers need to know: 

  • Employers remain prohibited from requesting and using criminal history information until after a conditional offer of employment is made. This prohibition applies even when the applicant voluntarily discloses information regarding their criminal history. The regulations continue to exempt employers who are required by any state, federal or local law to conduct background checks. However, the regulations clarify that the exemption applies only if the employer is required to conduct the background check (usually to those in the Home Healthcare Industry). It does not cover an employer if the state, federal or local law requires another entity, such as a licensing or regulatory agency, to conduct the background check.
  • The regulations also make clear that employers cannot put anything in a job advertisement or posting which indicates a person with criminal history will not be considered.
  • The revised regulations clarify that the definition of “applicant” now includes existing employees who have applied or indicated a specific desire to be considered for a different position with their current employer and who will be subjected to a review and consideration of criminal history because of a change in ownership, management, policy, or practice.
  • After extending a conditional offer of employment, if the employer intends to deny an applicant the position based solely or in part of the applicant’s conviction history, the employer must perform an initial individualized assessment that considers:
    • The nature and gravity of the offense;
    • The time that has passed since the offense or conduct; and
    • The nature of the job held or sought.

The revised regulations, however, add several new considerations to each of the three factors above.  For example, for the nature and gravity of the offense, the employer may consider:

  • 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.
  • The regulations continue to require an employer to conduct a “reassessment” if an individual provides rehabilitation or mitigating evidence in response to the preliminary decision notice. Factors to consider as part of the reassessment include:
  • When 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 and engagement since the conviction or completion of sentence, including but not limited to, volunteer work for a community organization, engagement with a religious group or organization, participation in a support or recovery group, and other types of civic participation; and/or
  • The applicant’s other rehabilitative efforts since the completion of sentence or conviction or mitigating factors not captured in the above subfactors.

The revised regulations do not make sweeping changes to an employer’s consideration of criminal history, but merely clarify and provide more context to the existing regulations.  If you have questions about using criminal history in light of the revised regulations, please reach out to your consultant at Silvers HR.

A copy of the revised regulations can be found here.