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How can CA employers use criminal history in employment decisions?

Updated: Dec 6, 2023

As of October 1, 2023, revised regulations will apply to how CA employers may use an applicant's criminal history in making employment decisions.

Current regulations regarding use of criminal history:

Since July 2017, the Fair Employment and Housing Act ("FEHA") has prohibited California employers from checking an applicant's criminal record until after issuing a conditional offer of employment (unless a criminal background check is required by law for the position). If an applicant has a criminal history and the employer wants to withdraw the conditional offer, the employer must send the applicant a notice of their decision and the evidence used, and allow the applicant to submit additional information about their convictions or rehabilitation.

What's changing on October 1st?

The new regulations make two primary changes:

  1. The definitions of "employer" and "applicant" are now substantially broader; and

  2. Employers must revise written statements regarding how they use criminal history in employment decisions.

Change #1: Expanding the definitions of "employer" and "applicant"

Effective October 1, 2023, the definition of "employer" will expand to include “any entity that evaluates the applicant’s conviction history on behalf of an employer, or acts as an agent of an employer.” This means background screeners and third parties who assist in the hiring process – who were not previously covered – must now comply with FEHA regarding use of criminal history.

"Applicant" is redefined as well and now includes existing employees who are applying to an internal position, or who are subject to a review of their criminal history due to a change in ownership, management, policy, or practice.

Change #2: Revising written statements regarding use of criminal history

California employers will now be prohibited from stating in job postings and applications that they will not hire applicants with criminal histories (unless the position specifically requires otherwise by law). Employers may receive information about an applicant’s criminal history when the applicant freely offers it, but they are prohibited from using that information while considering the applicant for the position.

If you have questions about how to use criminal history in your hiring strategy, let us know!

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