California Updates Regulations for Criminal Background Checks

In an effort to reduce undue barriers to employment for job applicants with criminal histories, California adopted the Fair Chance Act, which went into effect on January 1, 2018. Also known as the “Ban the Box” law, the Fair Chance Act prohibits employers with five or more employees from asking a job applicant about conviction history before making a job offer, among other requirements. The California Civil Rights Council (CRC) has recently adopted revised regulations for the Fair Chance Act, which became effective on October 1, 2023.

The revised regulations seek to clarify an employer’s obligations when considering criminal history during the hiring process. For example, the Fair Chance Act prohibits an employer from inquiring about criminal history prior to a conditional job offer, unless required to do so by law for certain positions such as law enforcement. Under the revised regulations, statements in job advertisements and postings that a person with a criminal history will not be eligible for hire are also prohibited. Additionally, employers may never consider certain categories of criminal history information, such as arrests that did not result in convictions, and referrals to diversion programs.

After extending a conditional job offer, an employer that intends to deny an applicant the job based on their criminal history must first perform an assessment as to whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job. Under the original Fair Chance Act, the assessment required employers to consider three main factors:

• Nature and gravity of the offense;
• Time passed since the offense; and
• Nature of the job sought.

Under the revised regulations, additional considerations are included to clarify the three main factors. Employers are encouraged to review the new criteria and make any necessary changes to their individualized assessment process. For example, consideration of the nature and gravity of the offense may now include:

• The specific personal conduct of the applicant that resulted in the conviction;
• Whether the harm was to property or people;
• The degree of the harm;
• The permanence of the harm;
• The context in which the offense occurred;
• Whether a disability, including but not limited to a past drug addiction or mental impairment, contributed to the offense or conduct;
• Whether trauma, domestic or dating violence, sexual assault, stalking, human trafficking, duress, or other similar factors contributed to the offense or conduct; and/or
• The age of the applicant when the conduct occurred.

If an employer provides notice of its intent to withdraw a job offer based on the applicant’s criminal history, applicants have an opportunity to respond with evidence challenging the conviction information and details regarding rehabilitation efforts or mitigating circumstances. The revised regulations further clarify what constitutes evidence of rehabilitation or mitigating circumstances that applicants may submit during the process, and they provide employers with additional factors to consider after receiving such information from an applicant.

Based upon these recent updates, employers that use criminal history in their hiring process should review the revisions and consult with their legal counsel to make any necessary changes to their screening policies and practices.