California Additions to FEHA Expands Job Applicants Rights

November 21, 2023

The California Civil Rights Council recently issued new regulations that modify California’s Fair Employment and Housing Act (FEHA). The FEHA regulates when and how employers may perform background checks on job applicants. With the new regulations already in effect, employers should review their hiring policies for immediate compliance.

What is FEHA?

The FEHA provides Californians protection for housing and employment. It protects job applicants and employees from discrimination based on race, national origin, ancestry, marital status, color, religion, or age if over 40. It also prevents bias based on sexual orientation, sex, disability, medical condition, or creed, and family and medical care leave denial. 

The Act also bans employers from conducting a criminal background check unless they have made a conditional offer of employment. After running a background check, an employer may decide against hiring an applicant based on the background screening results. However, they must conduct an individualized background check before taking adverse action.

During this assessment, the employer must consider the following:

  • The nature and gravity of the offense or conduct;
  • The time that has passed since the offense or conduct and/or completion of the sentence and
  • The nature of the job held or sought.

An employer may still decide that an applicant’s criminal history disqualifies them from the job after the assessment. As such, the employer must give the applicant the required notice. The employer must also provide the applicant enough time to respond.

New Protections

The new regulations have added protections to the FEHA; employers must comply with the latest and previous rules. One added law prohibits employers from stating in job descriptions that they will not consider anyone with a criminal background. However, the new additions include a few exceptions to the regulation.

For example, jobs required by law to perform a criminal background check are exempt from these protections. Criminal justice agencies and others that require screening also benefit from the exemptions. Another regulation bans employers from trying to find an applicant’s criminal history via an internet search. It also prevents employers from considering an applicant’s criminal history even when the applicant voluntarily provides the information.

When performing the individualized assessment, applicants may provide evidence of rehabilitation or mitigating circumstances. Employers must consider this information when applicants present it. As such, employers cannot refuse any evidence or mitigating circumstances provided by the applicant. Employers must also give applicants a minimum of five days to respond to an adverse notice and an additional five days if the applicants request more time.

The new regulations will benefit many California residents and employers by expanding the labor pool. Employers should review their hiring policies to ensure they comply with FEHA regulations. One way to ensure compliance is by partnering with a trustworthy background check company.

Keep your business compliant with new laws and regulations with JDP’s reliable background checks. Contact a sales rep today.