The California Civil Rights Department has approved proposed changes to the regulations applicable to the use of an applicant’s criminal history in making employment decisions. The revised regulations are effective on October 1, 2023.
So, what do you need to know?
- You still cannot inquire about an “applicant’s” criminal history prior to making a conditional job offer unless doing so is required by law, such as when hiring teachers or law enforcement officers. The revised regulations make clear that this prohibition applies for all job advertisements, postings, and applications, and even if the applicant voluntarily discloses their criminal history prior to receiving a conditional job offer.
- The term “applicant” now includes existing employees who may be placed in a different position, or subject to review due to a change in the employer’s “ownership, management, policy, or practice.” This revision is important because it clarifies when employers may consider a current employee’s criminal history.
- Before you deny employment based on the applicant’s criminal history, you must perform an “individualized assessment” to determine the impact of the criminal history and whether there is sufficient justification to reject the applicant. The current regulations state that in making this assessment, you must consider (a) the nature and gravity of the offense, (b) the time that has passed since the offense, and (c) the nature of the job held or sought. Considerations relevant to these factors may include the conduct that resulted in the conviction; whether the applicant harmed property or people; and the extent of the harm.
- Once you provide the applicant with written notice of your preliminary decision to withdraw the job offer based on their criminal history, then they can challenge the accuracy of the conviction information, explain their rehabilitation efforts, and/or detail any mitigating circumstances that might change your initial assessment. Considerations relevant to this step may include whether the applicant has a disability that contributed to the offense, and if so, whether a reasonable accommodation could mitigate or eliminate the conduct; whether trauma, domestic or dating violence, sexual assault, stalking, human trafficking, duress, or similar factors contributed to the offense; the applicant’s age at the time of the offense; and the applicant’s self-improvement efforts.
Applicants must respond to the preliminary notice within five business days of receiving it, unless you give them more time. If you send the notice via email, it is deemed received two days later. They may voluntarily provide documents to demonstrate why you should hire them anyway. But you cannot require an applicant to provide specific documentary evidence, or condition the job on the receipt of specific evidence.
- After receiving the applicant’s response, you must reassess and consider the new information prior to making a final decision. You must provide the applicant written notice of your final decision, whether you decide to rescind the conditional offer of employment.
- You may (but are not required to) use the sample notice forms available on the Civil Rights Department’s website.
Here is a link to the revised regulations..
Call your favorite employment lawyer if you have questions.