Changes in California's Regulations Regarding Criminal Records Approved

By Rod Fliegel and Alice H. Wang on August 1, 2023

The California Civil Rights Council previously issued draft revisions to the Fair Employment and Housing Act's regulations governing inquiries into and consideration of a job applicant's criminal history in making hiring decisions. On July 24, 2023, the Office of Administrative Law approved the Council's proposed modifications to the regulations.

The Council is amending regulations: (1) pertaining to the consideration of conviction history prior to a conditional job offer; (2) pertaining to consideration of certain types of conviction records; (3) governing what employers must do when they intend to rely on criminal records to rescind a conditional job offer; (4) covering labor contractors, union hiring halls, and client employers; (5) prohibiting disparate treatment; (6) determining adverse impact; (7) outlining procedural requirements; (8) covering situations when an employer seeks the Work Opportunity Tax Credit provided under section 51 of the Internal Revenue Code; and (9) defining terms used in Cal. Code Regs. Tit. 2, § 11017.1.

The proposed modifications previously discussed will go into effect with the following exceptions:

  • Evidence of rehabilitation or mitigating circumstances submitted after an employer notifies an applicant of the preliminary decision to disqualify may only be voluntarily provided by the applicant or by another party at the applicant's request.
  • The final definition of "Applicant" has been expanded even further to include "an existing employee who is subject to a review and consideration of criminal history because of a change in ownership, management, policy or practice."
  • The "Introduction" paragraph previously found in Article 2, § 11017.1 of the proposed regulations was not ultimately adopted.

The final regulatory action takes effect on October 1, 2023.

This article was originally published on Littler Mendelson's website. Click here to read the original article.

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Posted: August 1, 2023

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