2023Criminal Records

Written By Digital Content Editor Thomas Ahearn

In December 2022, the California Civil Rights Department (CRD) issued proposed revisions to regulations that govern the use and consideration of the criminal history of job applicants by employers conducting criminal background checks for employment decisions under the Fair Employment and Housing Act (FEHA).

The draft revisions from the CRD were made in response to written comments on earlier proposed regulations received during a 45-day public comment period that ended on August 10, 2022. Some of the changes in the latest proposed modifications to the FEHA regulations regarding criminal background checks include:

  • With limited exceptions, employers have no legal obligation to conduct criminal background checks on applicants or current employees. If they choose to do so, it must be within the legal limitations of the regulations.
  • The exceptions in the regulations to the prohibition against inquiring about or using criminal history apply only when an employer is required by law to conduct criminal background checks.
  • An employer may not consider any information about criminal history volunteered by an applicant until after deciding whether to make a conditional employment offer.
  • An employer must use additional considerations for an “individualized assessment” when considering an “adverse action” based on an applicant’s conviction history.
  • An employer must consider evidence of rehabilitation or mitigating circumstances voluntarily provided by an applicant as part of the initial “individualized assessment.”
  • Expanded definitions of “applicant” and “employer.”

The proposed modifications were subject to a 15-day written comment period that ended on December 30, 2022. Employers in California that conduct criminal background checks on job candidates should consider reviewing their policies and procedures related to their employment screening process.

Employment Screening Resources (ESR) is a service offering of ClearStar, a leading Human Resource technology company specializing in background checks, drug testing, and occupational health screening. ClearStar offers background checks for employers that comply with state laws. To learn more, contact ClearStar.

NOTE: Employment Screening Resources (ESR) – a service offering of ClearStar – does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

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