Criminal Law Background Checks: An Update!

California’s Fair Employment and Housing Council (“FEHC”) has proposed new revised regulations addressing the state’s new ban-the-box and parental leave laws.  The regulations are not yet final or in effect, but are being considered by the FEHC and likely will be adopted, potentially with some modifications based on input from public comments and public hearings in the near future, with the first hearing scheduled for April 4, 2018.

Ban the Box/Criminal History Inquiry Regulations

You may will recall that last year, the FEHC adopted new regulations regarding the use of criminal history information in employment decisions.  Those regulations “encouraged” employers to conduct an individualized assessment of the relationship between a criminal conviction and the job sought.  Then, later last year, AB 1008 was signed into law, prohibiting employers from inquiring about an applicant’s criminal history at any time before a conditional offer of employment is made, and setting forth a specific procedure employers must follow if they ultimately intend to deny employment based on criminal history.  The FEHC has now proposed revised criminal history regulations to reflect the state’s enactment of the ban-the-box law.

For the most part, the proposed regulations simply incorporate the requirements of AB 1008 and combine them with the pre-existing standards for using criminal conviction information in employment decisions.  However, the proposed regulations provide some clarifying guidance in a couple of areas.  First, under AB 1008, if an employer makes a preliminary decision to deny employment to an applicant based on criminal history information, the law provides that the employer must give the applicant written notice and at least 5 business days to respond before the employer makes a final decision regarding employment.  The proposed regulations clarify that the 5 business days runs from the applicant’s date of receipt of the notice.  The proposed regulations further provide, “If notice is transmitted through a format that does not provide a confirmation of receipt, such as a written notice mailed by an employer without tracking delivery enabled, the notice shall be deemed received five calendar days after the mailing is deposited for delivery for California addresses, ten calendar days after the mailing for addresses outside of California, and twenty calendar days after mailing for addresses outside of the United States.”

Another area of clarification is on the subject of what type of information qualifies as evidence of rehabilitation or mitigating circumstances.  (AB 1008 provides that in response to a notice informing the applicant that the employer intends to deny employment based on a criminal conviction, the applicant may submit evidence challenging the accuracy of the conviction information and/or evidence of rehabilitation or mitigating circumstances.)  The proposed regulations provide that evidence of rehabilitation or mitigating circumstances may include (but is not necessarily limited to) “the length and consistency of employment history before and after the offense or conduct; the facts or circumstances surrounding the offense or conduct; and rehabilitation efforts such as education or training.”

We will keep you posted.

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