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The California Civil Rights Council Approves Changes to Criminal Records Regulations

16 Aug


Update Applicable to:

All employers with 5 or more employees who have workers in California (for multi-state employers, the employee count applies even if the employer has less than 5 employees working in California)

What happened?

On July 24, 2023, the Office of Administrative Law approved the California Civil Rights Council’s proposed modifications to the Fair Employment and Housing Act (FEHA) regulations governing the consideration of a job applicant’s criminal history in hiring decisions. The changes are set to take effect on October 1, 2023.

What are the details?

Key Amendments to FEHA Regulations:

  1. Prohibition of Consideration of Criminal History Prior to Conditional Offer: Employers are generally prohibited from inquiring about or using an applicant’s criminal history before making a conditional job offer. Exceptions apply only when the employer is legally required to conduct criminal background checks.
  2. Requirements for Rescinding a Conditional Job Offer Based on Conviction History: The Council introduced additional factors for an individualized assessment when an employer intends to rescind a conditional job offer due to the applicant’s conviction history. Applicants may voluntarily provide evidence of rehabilitation or mitigating circumstances during the assessment.
  3. Employers Seeking the Work Opportunity Tax Credit: Employers applying for the Work Opportunity Tax Credit must maintain related forms, documents, and information in confidential files separate from the applicant’s general personnel file and may not use or disseminate this information for other purposes.
  4. Expanded Definitions: The definition of “Applicant” now includes existing employees who apply for a different position within their current organization. The definition of “Employer” includes entities that evaluate an applicant’s conviction history on behalf of an employer, staffing agencies, and entities that select workers from a pool or availability list.

For more information, please see the links below:

Law Firm Article 1, Article 2

California Regulatory Notice Register (PDF)

Notice – Fair Employment and Housing Council’s Modifications to Employment Regulations Regarding Criminal History (PDF)

Initial Statement of Reasons (PDF)

Text of Proposed Modifications to Employment Regulations Regarding Criminal History (PDF)

Modified Text of Proposed Modifications to Employment Regulations Regarding Criminal History (PDF)

Further Modifications to Employment Regulations Regarding Criminal History (PDF)

Additional Modifications to Text of Proposed Modifications to Employment Regulations Regarding Criminal History (PDF)

Final Statement of Reasons (PDF)

Final Text (PDF)

Notice of Approval (PDF)

What do employers need to do?

Employers in California relying on criminal background checks for vetting candidates must be aware of the revised FEHA regulations coming into effect on October 1, 2023. The changes aim to ensure fair and equitable hiring practices, and employers should review their policies, procedures, and screening-related documents to comply with the new guidelines. Additionally, staying informed about ongoing developments on this topic nationwide is crucial in light of the growing number of laws and ordinances affecting employment practices.

Need help understanding how changes to employment laws will affect your business?

Learn more about how Vensure's California PEO services can help you navigate complex employment laws and keep your business compliant.

This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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