California is once again looking at making changes to how employers can use information from background checks in employment decisions. The California Civil Rights Department’s Civil Right Council released their most recent draft of changes to their Fair Employment and Housing Ace (FEHA) this past December. This update addresses proposed changes to the use of criminal history for employment decisions.

One change proposed is an introductory statement to “clarify that ‘with limited exceptions,’ employers have no legal obligation to check the criminal histories of applicants or current employees. If employers choose to do so, they must abide by the legal limitations set forth in the regulations.”

Updates to the definitions of “Applicant” and “Employer” have also been proposed:

• Applicant: “Existing employees who have applied or indicated a specific desire to be considered for a different position with their current employer.”
• 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.”

Except when the employer or their agent is required by law to run a criminal background check, they cannot do so before a conditional offer of employment has been made. The employer is not exempt from this rule when another agency, such as a licensing board, must run a criminal check by law. Even if the applicant provides information voluntarily, that information cannot be used in an employment decision before the employer has determined if they will make a conditional offer of employment.

The state of California already has a process for making individual assessments of an applicant’s criminal history before they move to a pre-adverse action. In this new draft, the Council has added items for consideration before criminal history can be used to rescind an offer of employment. Employers are already required to provide a written notice to the applicant with a list of items to be included. Added to that list is:

“If an employer’s preliminary decision to withdraw the job conditionally offered involved the use of an automated-decision system, a copy or description of any report or information from the operation of the automated-decision system, related data, and assessment criteria used as part of an automated-decision system.”

The employer has to give the applicant the opportunity to respond to the notification. If, after reviewing the response from the applicant, the employer decides to proceed with the adverse action process, the employer must notify the applicant in writing, and added to that list of requirements is:

“The use of an automated-decision system, in the absence of additional processes or actions, does not constitute an individualized assessment.”

It is a best practice to review the laws in all areas where your company does business at least annually, if not more frequently, to ensure that you are in compliance with those laws. This is especially important in locations like California, where there are requirements in addition to those of the Fair Credit Reporting Act (FCRA).

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