California Office of Administrative Law Expands Definition of Employer

August 10, 2023

The Civil Rights Council proposed an amendment to California’s employment regulations concerning criminal history. As of July 24, California’s Office of Administrative Law accepted this amendment. 

The primary change of this amendment alters the regulations concerning how employers may screen applicants’ criminal histories. By altering the relevant definition of “employer,” these regulations may cover background check agencies working on behalf of employers. Affected parties can expect this to take effect on October 1, 2023

These regulations first took effect in 2017 to limit how employers can consider criminal history when making employment decisions. Employers cannot attempt “inquiring into, considering, distributing, or disseminating” an applicant’s criminal history before making a conditional offer of employment. 

Moreover, they cannot seek information about specific types of criminal records at any point in the individual’s career. The regulations provide that employers must complete an individual assessment before they can rescind an employment offer due to discovering a candidate’s conviction history. In addition, the employer must provide a notice explaining the reason to affected applicants.

This new amendment does not enact significant changes, instead fleshing out the existing ones. For example, the amendment adds a new definition under the definitions provided for ” employer.” It also expanded the regulations to affect “any entity that evaluates the application’s conviction history on behalf of an employer or acts as an agent of an employer, directly or indirectly.” Some experts could construe that definition includes agencies performing background screening checks on candidates for employers. 

This interpretation already emerged during the amendment’s notice and comment period. One comment surfaced the possibility of expanding the definition of “employer” so the regulations would affect “a third party like a background check company… where it exerts control over access to the job market or employment opportunities, and its discriminatory conduct interferes with an applicant’s access to the same, and where it acts as an agent of the direct employer.” The Civil Rights Council agreed with the comment, implementing a similar definition.

Background screening companies working with affected California employers must act cautiously if this interpretation proves accurate. Agencies must make a conditional offer of employment before delving into an individual’s conviction history as part of a report. 

In addition, they should refrain from inquiring into some records, even if they do not appear in a completed report. To abide by the Civil Rights Council’s amendment and all applicable regulations, employers and background screening agencies should ensure they comply with the strictest interpretation of California law.

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