January 18, 2023

Employers in California must comply with many regulations and ordinances when using criminal background checks to learn more about potential employees.

Despite these established requirements, employers may soon see changes to California’s Fair Employment and Housing Act (FEHA). As a result, they may find it necessary to change their hiring and workplace policies to comply with the updates. The proposed changes would revise regulations covering how employers can use an applicant’s or employee’s criminal history when making employment decisions.

Here are the proposed changes to the FEHA concerning criminal history:

• Excluding limited situations, employers have no obligation to check an applicant’s or employee’s criminal history. If an employer chooses to check said history, they must comply with the legal limitations found in the regulations. Anyone with a claim under the Fair Chance Act may file a complaint or obtain an immediate right-to-sue notice. The California Civil Rights Department will investigate any claims.
• An employer is only exempt from any restrictions on inquiring about or using criminal history when required by law to perform a criminal background check. Some cases under federal, state, or local law may require another entity to conduct a criminal background check. However, such cases do not exempt employers from the law’s prohibitions.
• Employers cannot consider information voluntarily provided by an applicant about their criminal history when made before receiving a job offer. Therefore, employers cannot use this information when deciding whether to make a conditional offer of employment but may use it afterward.
• Individualized assessments have seen additional changes that employers must consider when deciding whether to rescind conditional offers of employment based on an applicant’s or employee’s conviction history. These changes involve the “nature of the job held or sought,” “time that has passed since the offense,” “conduct and/or completion of the sentence,” and “nature and gravity of the offense or conduct,” aspects of the individualized assessment.
• When conducting the initial individualized assessment, employers must consider evidence voluntarily furnished by the applicant. For example, applicants may supply proof of mitigating circumstances or rehabilitation. After making a preliminary decision to disqualify an applicant based on criminal history, the employer must notify and offer the applicant an opportunity to provide said evidence. However, submitting proof is optional, and the applicant must supply it voluntarily.
• The proposal also includes expanded definitions for “applicant” and “employer.” The term “applicant” includes employees who have applied for or indicated their desire for a different position with their existing employer. The term “employer” includes a direct or joint employer, an entity evaluating an applicant’s conviction history on behalf of an employer or acting as an agent of the employer, whether directly or indirectly. Such entities include a staffing agency that chooses, obtains, or is provided workers from a pool or availability list.

Employers should prepare to update their hiring practices. Early preparation will ensure they comply with these proposed regulations that many expect legislation to adopt. The best way to ensure compliance with frequently changing regulations is to partner with a background check company you can trust.

Looking to easily verify your employment qualifications? Talk to a sales representative today about switching to pre-employment background checks.

Source