In July 2023, the California Civil Rights Department (CRD) approved revised regulations related to the use of criminal history in the hiring process — regulations that go into effect on October 1, 2023.

“The new regulations clarify employers’ obligations when using criminal histories and offer additional details and examples,” said Bianca N. Saad, CalChamber’s Vice President of Labor and Employment for Content, Training and Advice. “Employers should take this opportunity to review and update their background check policies to ensure that they are in compliance with not only the existing laws, but the revised regulations as well.”

‘Ban-the-Box’ Basics

Most California employers with five or more employees may not ask about criminal history at any point before a conditional offer of employment is made.

“Employment applications often used to include a checkbox asking applicants to confirm that they have never been convicted of a crime,” said Saad. “But since 2018, California’s ‘ban-the-box’ laws have prohibited employers from requesting criminal history on applications and in any pre-offer interviews.”

Additionally, some municipalities — such as San Francisco and Los Angeles — have implemented their own ban-the-box laws, and employers who maintain offices in those cities must comply with both the state and the local laws. Employers with multiple worksites or teleworking employees should familiarize themselves with any local requirements and ensure that their policies are compliant.

And now, the CRD’s revised regulations have expanded on ban-the-box laws, stating that employers may not publish any statements in advertisements or job postings that suggest they won’t hire anyone with a criminal conviction, such as “applicants must have a clean record.”

Individualized Assessment: Revised Regulations Give More Guidance

The goal of the individualized assessment is to determine whether the conviction has a direct adverse effect on the applicant’s ability to perform their job duties.

“The current regulations require managers to consider three primary factors when making an individualized assessment,” said Saad. “Those factors are the nature and gravity of the criminal offense, the time elapsed since conviction and the nature of the position.”

The revised regulations build on each of these three guidelines, and add additional context and considerations that employers should factor in as they evaluate criminal history:

  • The nature and gravity of the criminal offense:
    • The applicant’s specific personal conduct that led to the conviction.
    • Whether the harm was to property or people.
    • The degree and permanence of the harm.
    • The context in which the crime occurred.
    • Whether a disability contributed to the offense, and if so, whether a reasonable accommodation or subsequent treatment of that disability would mitigate risk of harm.
    • Whether trauma, violence, duress or other similar factors affected the applicant.
    • The age of the applicant at the time of the crime.
  • The time elapsed since conviction:
    • The time that’s elapsed since the offense since that’s likely much earlier than the conviction.
    • If the applicant was incarcerated, the time elapsed since release.
  • The nature of the position:
    • Specific job duties.
    • Whether the context in which the offense occurred is likely to happen in the workplace.
    • Whether similar harm is likely to arise in the workplace.

Finally, the revised regulations clarify that the term “applicant” includes existing employees who are seeking a different position with their current employer, as well as those who are subject to a criminal history screening during employment due to a change in management or policy.

“If you’ve never conducted criminal background checks before but decide to implement them now, you should follow the individualized assessment process if you learn that any of your existing workers have criminal records,” said Saad. “And employers who currently conduct criminal background checks should review their policies and practices to ensure they align with the revised regulations.”

Responding to Criminal History

Following the individualized assessment, if an employer decides not to hire an applicant, it must provide a written notice to the applicant of their potential rejection due to prior criminal conduct and give the applicant at least five days to respond.

The revised regulations provide a number of examples of the types of evidence an applicant may offer to respond to a report of criminal convictions, such as letters of reference, certification of a disability or documentation of a completed counseling program.

“The revised regulations require that employers consider all of the applicant’s responsive evidence and encourage employers to apply particular consideration to evidence of rehabilitation,” said Saad. “That evidence could include an applicant’s conduct during incarceration, participation in educational activities or job training, and community or civic service.”

Following reassessment, if the employer still determines that the criminal conviction will prevent the applicant from being able to carry out the requirements of the job, the employer must provide the applicant with a written notice of the final decision. This notice must inform the applicant of the right to challenge the decision with the CRD.

Employer Takeaways

With the revised regulations taking effect on October 1, 2023, employers should do the following.

  • Review job postings and advertisements to ensure they don’t contain any language prohibited by the revised regulations, such as “no felons” or “clean background check required.”
  • Ensure that all criminal background check policies, including the individual assessment, apply to both existing employees seeking a different position with their current employer and applicants.
  • Review current background practices to make sure they comply with the revised regulations.
  • Consult with legal counsel before making a final decision not to hire if there’s no clear conflict between a criminal conviction and the specific duties that the sought-after job requires.

Sources: HRCalifornia Extra, Michelle Galbraith, J.D, CalChamber

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