The Down & Dirty on Background Checking – ‘Clean Records’ Cannot be Required

Are you a California employer? Do you utilize an applicant’s criminal history in making your employment decisions? Then listen up because this blog is for you. Effective October 1, 2023, the California Civil Rights Department’s revised regulation regarding criminal history checks goes into effect.

So, what do you need to know?

  1. Under the new regulations, you are prohibited from including statements in job ads, postings, applications, and all other hiring material that no applicant will be considered with a criminal history. This includes statements such as “No Felons” and “Must have a clean record.”
  2. Existing law states employers cannot ask an applicant about their criminal history before making the conditional employment offer (unless required by law) The revised law specifies that this also applies if an applicant voluntarily discloses their criminal history prior to the offer – don’t ask any follow up questions prior to making a contingent employment offer.
  3. New regulations have expanded the meaning of “applicant” to include existing employees who have applied or expressed interest in a different position within the company and an employee subject to a criminal history review due to a change in ownership, management, and/or company policies/practices.
  4. You still cannot deny employment based on an applicant’s criminal history before first performing an “individualized assessment” to determine the impact of the criminal record and whether it is enough to justify rejecting the applicant. Current law already laid out the three factors you must consider as part of this assessment: (1) the nature and gravity of the offense, (2) the time that has passed since the offense, and (3) the nature of the job held or sought. The revised regulations have added new considerations for each of the three factors. They include considerations such as whether the harm was done to property or people, whether the applicant suffered from a disability (including past drug addiction and mental impairment) contributing to the offense and the likelihood of it happening again, the age of the applicant at the time, the degree and longevity of the harm, and so forth.
  5. When rescinding the employment offer after the “individualized assessment,” you must still provide the applicant with a written preliminary decision. Under the new regulation, the applicant has the right to respond to the notice with evidence challenging the accuracy of the conviction history report and/or evidence of rehabilitation or mitigating circumstances. You cannot dictate what evidence the applicant must provide you. Once you receive the evidence, you must go through a re-assessment process before making the final decision.
  6. The applicant still has a 5-day deadline to respond, but new regulations clarify that it is 5 business days and includes a delay depending on the delivery method.
    1. If the communication is sent via email, the delay is 2-days before the clock starts.
    2. If communication is sent via mail without tracking, then:
      • Delivery in California includes a 5-day delay
      • Delivery outside of California includes a 10-day delay
      • Delivery outside the United States includes a 20-day delay

The California Civil Rights Department has created sample notices that can be utilized for both the preliminary and final decision notice and documentation for the initial assessment and re-assessment process. They are available here.