California is once again making changes to how employers can use information obtained in criminal background checks. Last month, changes that had been proposed by the California Civil Rights Council were approved by the California Civil Rights Council and the Office of Administrative Law.

These changes will go into effect on October 1, 2023. Employers that are required to run background checks and/or must consider criminal records in employment decisions based on any federal, state, or local laws are exempt from the changes unless any of those laws require the background check to be run by a licensing board or other entity and not by the company.

These changes expand on the existing laws and employer obligations. Any employers who does business in or hires people from California should start reviewing their current practices and make sure that any updates required by the approved changes are made in time to be documented and to have their required staff trained and ready by the effective date.

The current California law requires employers to make a conditional offer of employment before a background check is ordered. The update covers “an existing employee who is subject to a review and consideration of criminal history because of a change in ownership, management, policy or practice” or any employee being considered for another position within the company. This includes any information that the subject may have disclosed voluntarily.

Employers are barred from tying criminal records to job postings and applicants. For example, a phrase such as applicants “must have a clean record” cannot be listed. All candidates must be considered based on their qualifications for a position. 

Individualized assessments based on the position are already required by the state. The state also has its own 2-step process to follow before using any criminal information in employment decisions. State law  includes any criminal information that was found outside of the background check such as internet searches and as mentioned above, any information that the subject disclosed voluntarily.

The current assessment requires employers to look at:

• The nature and gravity of the offense or conduct
• How much time has passed since the offense or conduct
• The nature of the job held or sought

The regulations, effective October 1, 2023, have listed additional considerations to clarify each of these points that may include, but are not limited to considering whether a disability, trauma, domestic or dating violence, sexual assault, stalking, human trafficking, duress or other similar factors contributed to the offense or conduct. These additional considerations are designed to assist employers with providing enough detail in their assessment to show how the information directly relates to the position.

Other changes include:

• Employers will be required to make an individualized assessment before giving notice of a preliminary decision.
• Examples of rehabilitation or mitigating evidence which if provided must be considered by the employer in the process.
• Employers can neither require nor refuse to consider information from and applicant or employee; nor can they require disclosure of survivor status from domestic abuse, sexual assault, etc. and they cannot require the person to provide medical records or information on a disability or diagnosis.
• The definition of an employer will include “any entity that evaluates an applicant’s conviction history on behalf of an employer, or acts as an agent of an employer, directly or indirectly.”

As always, it is strongly suggested that employers review and update their practices, have their information reviewed by corporate counsel, and ensure that all required staff are trained on the requirements.

Sources: HR Watchdog; Seyfarth Shaw LLP