The Civil Rights Council (“Council”) of the California Civil Rights Department has released its latest draft revisions to the Fair Employment and Housing Act (“FEHA”) regulations governing an employers’ use and consideration of a job applicant’s criminal history in making employment decisions under the California Code of Regulations, Title 2, § 11017.1. This article summarizes the latest proposed modifications made by the Council.
Expanded Definitions
For the purposes of section 11017.1 only, the Council proposed expanded definitions of the following key terms:
- Applicant includes “existing employees who have applied or indicated a specific desire to be considered for a different position with their current employer.”
- Employer includes “any direct and joint employer; any entity that evaluates the applicant’s conviction history on behalf of an employer, or acts as an agent of an employer, directly or indirectly; any staffing agency; and any entity that selects, obtains, or is provided workers from a pool or availability list.”
Prior to the Conditional Offer of Employment
Unless an exception applies, an employer is prohibited against inquiring about or using a job applicant’s criminal history prior to making a conditional offer of employment. Additionally, even if an applicant voluntarily offers information about their criminal history before receiving a conditional offer, the employer cannot consider such information until after it has decided whether to make a conditional employment offer.
Can I Deny an Applicant a Conditional Offer of Employment Based on the Applicant’s Conviction History?
Under the latest proposed modifications, an employer must perform an individualized assessment in considering a rescission of a conditional offer of employment based solely or partly on the applicant’s conviction history. In determining what constitutes a “direct and adverse relationship” that warrants rescinding the conditional offer, an applicant’s possession of a benefit, privilege, or right required in order to perform the job by a licensing, regulatory, or government agency or board is “probative” of the conviction history’s not being directly and adversely related to the duties of the job.
In light of these pending changes, employers in California should review all policies and procedures related to the process of screening and vetting candidates.
For more information on the new proposed modifications to the FEHA regulations regarding the use and consideration of criminal history in employment decisions, please contact us at info@mnklawyers.com.
This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between MNK Law and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material.
