Understanding California’s Revised Criminal History Regulations

On July 24, 2023, the California Civil Rights Council (CRC) approved revised regulations on how California employers can use criminal history when deciding whether to hire someone under the Fair Chance Act. The council had been working on the revised regulations for several months before the regulations were finally adopted and approved. The revised criminal history regulations take effect on October 1, 2023.

The revised regulations add to the already long list of procedures California employers must follow when using criminal history as a basis for turning down a job application or taking another adverse employment action. The revised regulations add context and examples to existing laws and do not necessarily change the rules.

Modifications Employers and Employees Need to Be Aware of

There are several modifications to the existing criminal history regulations that employers and employees in California need to be aware of. According to existing law, California employers cannot ask about, consider, or disseminate information about an applicant’s criminal past before making a conditional job offer. According to the revised regulations, on top of being prohibited from asking about an applicant’s criminal past through an application or internet search, an employer is not allowed to include statements in materials such as postings and advertisements that a person with a criminal past will not be considered for the position.

If an employer makes a conditional offer of employment to an applicant and then later decides to deny the applicant the job because of their criminal history, the revised regulations require that the employer performs a personalized evaluation and reasonably determines if the conviction history has any direct and negative connection to the particular job duties that warrant a rejection of the conditional job offer.

Under existing rules, the following are the three factors employers must consider when conducting an assessment;

• The nature and seriousness of the crime;
• The amount of time that has elapsed since the crime; and
• The type of job in question

Under the revised regulations, employers are required to make numerous new considerations under each factor. For instance, when considering the nature and seriousness of the crime, an employer must consider the durability of the harm and the specific personal conduct of the applicant that resulted in the conviction.

Additionally, if an employer intends to take back a job offer because of an individual’s criminal past, the individual can bring forth evidence challenging the decision. There are more examples under the revised regulations of the kind of evidence applicants can present. Once an employer receives evidence from an applicant, they must consider it.

Finally, in the case of a job applicant who volunteers information about their criminal history before receiving a conditional job offer, an employer is not allowed to consider the information until after they have decided whether to make the applicant a conditional job offer. Additionally, there are some categories of criminal history that an employer cannot consider. They include arrests/detentions that did not result in a conviction, dismissed/sealed/expunged/statutory eliminated convictions, and referrals to diversion programs. Even if an applicant voluntarily shares such information with an employer, the employer cannot consider the information.

Contact a California Employment Lawyer

Contact a qualified California employment lawyer for more information on the revised California criminal history regulations.