Amendments to California Employment Regulations Regarding Criminal History Will Take Effect October 1, 2023

By Jaimie Graczyk posted 08-03-2023 12:52 PM

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California employers should prepare to update their policies and practices concerning criminal history inquiries in employment decisions. On July 24, 2023, the Office of Administrative Law (OAL) approved amendments to the Civil Rights Council’s proposed regulations to the California Employment Regulations Relating to Criminal History. The amended regulations become effective on October 1, 2023.

California employers are probably familiar with these regulations. They set guidelines and outline requirements related to an employer’s investigation into a California job applicant’s criminal history, including conducting an individualized assessment before rescinding a job offer to a candidate with a criminal conviction on their record, and providing specific notices pertaining to the criminal conviction inquiry.

The Council amended regulations:

pertaining to the consideration of conviction history prior to a conditional offer of employment;
pertaining to consideration of certain types of conviction history;
governing what an employer must do when they intend to deny an applicant employment conditionally offered because of the applicant’s conviction history;

covering labor contractors, union hiring halls, and client employers;
prohibiting disparate treatment;
used to determine disparate impact;
outlining procedural requirements;
covering situations when an employer seeks the Work Opportunity Tax Credit provided under section 51 of the Internal Revenue Code; and

defining terms used in Cal. Code Regs. Tit. 2 section 11017.1.

The amendments provide additional guidance and clarification on some of the regulations but also place additional restrictions on employers’ ability to conduct criminal history inquiries. For example, the amendments provide additional considerations to the factors in the individualized assessment, such as offering more examples to analyze the nature and gravity of the offense or conduct and the nature of the job held or sought.

On the other hand, the amendments make changes to the process for the notice of preliminary decision and opportunity for applicant to respond. For example, the amendments give the applicant the choice to respond to the employer’s notice of preliminary decision and opportunity for applicant to respond, including that “such evidence of rehabilitation or mitigating circumstances is optional and may only be voluntarily provided by the applicant or by another party at the applicant’s request.” Furthermore, it specifically prohibits employers from “refusing to accept additional evidence voluntarily provided by an applicant or by another party at the applicant's request, at any stage of the hiring process,” and also prohibits an employer from requiring the applicant to submit any of the additional evidence during the preliminary notice process.

The amendments discuss numerous other changes and obligations that employers with California employees should be aware of. Because the regulations take effect on October 1, employers should begin preparing for these changes by reviewing the amended regulations, updating internal criminal history employment procedures, and consulting with legal counsel on next steps. Members that have questions about the amended regulations can contact the California Legal Services team at CAinfo@employerscouncil.org.