On July 24, 2023, the State of California Office of Administrative Law approved the California Civil Rights Council’s proposed modifications to the regulations applicable to the use and consideration of the criminal history of job applicants by employers in the Golden State that conduct background checks. This regulatory action will take effect on October 1, 2023.
California employers using background checks must comply with the Fair Chance Act which requires them to wait until after a conditional job offer to inquire about criminal history, conduct an “individualized assessment” before rejecting applicants due to criminal history, and follow a specific notice process if adverse action is taken based on the criminal history.
The Civil Rights Council is amending California Code of Regulations Title 2 Div. 4.1 Ch 5 SubCh 2 Article 2 Section 11017.1 which regulates the consideration of conviction history in employment decisions. Specifically, the Notice of Approval of Regulatory Action from the Office of Administrative Law states that the Civil Rights Council is amending regulations:
- Pertaining to the consideration of conviction history prior to a conditional offer of employment;
- Pertaining to consideration of certain types of conviction history;
- Governing what an employer must do when they intend to deny an applicant employment conditionally offered because of the applicant’s conviction history;
- Prohibiting disparate treatment;
- Used to determine adverse impact;
- Outlining procedural requirements; and
- Defining terms used in Section 11017.1.
The modified regulations expand the definition of “employer” to include “any entity that evaluates an applicant’s conviction history on behalf of an employer, or acts as an agent of an employer, directly or indirectly.” The regulations also clarify that an “applicant” now includes “an existing employee who is subject to a review and consideration of criminal history.”
In addition, among other changes, the modified regulations prohibit employers from using job advertisements or job postings that indicate an applicant with a criminal history will not be considered for employment. California employers that conduct background checks should review the “Final Text of Modifications to Employment Regulations Regarding Criminal History.”
ClearStar is a leading global Human Resources technology company specializing in background checks, drug testing, and occupational health screening. ClearStar offers pre-employment screening that complies with federal, state, and local laws regarding criminal background checks. To learn more about workforce screening solutions from ClearStar, contact us today.
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Thomas Ahearn - Digital Content Editor
Thomas Ahearn is a Digital Content Editor at ClearStar, a leading Human Resources (HR) technology company specializing in background checks, drug testing, and occupational health screening. He writes about a variety of topics in the background screening industry including Artificial Intelligence (AI), "Ban the Box," class action lawsuits, credit reports, criminal records, drug testing, Equal Employment Opportunity Commission (EEOC), Fair Credit Reporting Act (FCRA), Form I-9, identity theft, privacy, social media screening, and workplace violence.
At ClearStar, we are committed to your success. An important part of your employment screening program involves compliance with various laws and regulations, which is why we are providing information regarding screening requirements in certain countries, region, etc. While we are happy to provide you with this information, it is your responsibility to comply with applicable laws and to understand how such information pertains to your employment screening program. The foregoing information is not offered as legal advice but is instead offered for informational purposes. ClearStar is not a law firm and does not offer legal advice and this communication does not form an attorney client relationship. The foregoing information is therefore not intended as a substitute for the legal advice of a lawyer knowledgeable of the user’s individual circumstances or to provide legal advice. ClearStar makes no assurances regarding the accuracy, completeness, or utility of the information contained in this publication. Legislative, regulatory and case law developments regularly impact on general research and this area is evolving rapidly. ClearStar expressly disclaim any warranties or responsibility or damages associated with or arising out of the information provided herein.
