The Civil Rights Council submitted amendments to the regulations covering how parties may use criminal history. The California Office of Administrative Law recently approved these regulations, significantly altering how employers use an individual’s criminal history information.
The amendments will change the definitions for several regulations. These changes include guidance concerning the use of criminal history before making a conditional offer of employment. In addition, it updates the initial individualized assessment and how to consider provided evidence of mitigation or rehabilitation.
The definitions of employer and applicant have changed and become more broad in their scope. Here are some examples:
Employer: Employers include the following: “a labor contractor and a client employer; any direct and joint employer; any entity that evaluates the applicant’s conviction history on behalf of an employer, or acts as an agent of an employer, directly or indirectly; any staffing agency; and any entity that selects, obtains, or is provided workers from a pool or availability list.”
Applicant: An applicant “includes, in addition to the individuals within the scope of the general definition in section 11008(a) of these regulations, individuals who have [received] conditionally offered employment, even if they have commenced employment when the employer undertakes a post-conditional offer review and consideration of criminal history; existing employees who have applied or indicated a specific desire [for] a different position with their current employer; and an existing employee [subjected] to a review and consideration of criminal history because of a change in ownership, management, policy, or practice. An employer cannot evade the requirements of Government Code section 12952 or this regulation by having an individual lose their status as an ‘applicant’ by working before undertaking a post-conditional offer review of the individual’s criminal history.”
Considering Criminal History Before Conditional Job Offers
Other amendments addressed how to consider criminal history before making a conditional job offer. Here are some of the changes:
- Employers cannot include any wording in job postings, advertisements, applications, and other materials claiming they will not consider individuals with criminal history.
- Exceptions to the regulations when the law requires an employer to conduct criminal background checks before offering conditional employment; exceptions do not apply if the law requires another entity to run the background check.
- Employers cannot consider any information about an applicant’s criminal history, even if the applicant provides it voluntarily.
Rescinding Conditional Job Offers
The amended regulations have changed what factors employers must consider before withdrawing the conditional offer of employment. This section addresses rescinded offers based on an applicant’s criminal history. According to the changes, the background must have a direct and adverse relationship to the offered position.
Initial Individualized Assessment
The amended regulations specify that the employer’s individualized assessment must be “a reasoned, evidence-based determination.” As such, they must consider the three factors included in the original regulations: The nature and gravity of the offense or conduct, the time that has passed since the offense or conduct and/or the completion of the sentence, and the nature of the job held or sought.
Furthermore, the amended regulations require employers to consider “any evidence of rehabilitation or mitigating circumstances.” This specification applies when the applicant or a qualified third party provides information “before or during the initial individualized assessment.”
Evidence of Rehabilitation or Mitigating Circumstances
In the past, employers had to consider evidence of rehabilitation or mitigating circumstances after sending a pre-adverse action notice to the applicant. Now, employers must consider this evidence as part of the initial individualized assessment when provided by the applicant. The amended regulations also include guidance concerning what evidence employers should consider.
Though the wording sounds optional, employers should consider this evidence to avoid future complications. However, they cannot request specific types of information. The regulations also prohibit employers from disqualifying applicants for failing to provide specific details.
California employers should review their hiring practices and ensure they comply with California’s FEHA. The best way for employers to comply with these and other background screening regulations is to partner with an experienced background check company.