At Mehtani Law Offices, our Beverly Hills employment law attorneys know there is already a long list of procedures that must be followed when a California employer uses criminal history to reject an applicant or take other adverse actions against an applicant or employee.
On October 1, 2023, changes to the Fair Employment and Housing Act (FEHA) regulations that govern how employers can use information about criminal history in employment decisions go into effect.
What are the Newest Changes Regarding Reviewing California Applicant’s Criminal Histories?
Employers and other covered entities are prohibited from inquiring into, considering, or disseminating information about an applicant’s criminal history until the employer makes a conditional offer of employment.
These prohibitions apply to:
- Direct and joint employers.
- Entities that evaluate applicant criminal history information on behalf of an employer.
- Anyone acting as an agent of an employer.
- A staffing agency.
- Any person/entity that selects, obtains, or provides workers or maintains a pool or availability list of workers.
A law that requires an entity other than the employer, like an occupational licensing board, to conduct a criminal background check does not exempt the employer from these regulations.
These prohibitions apply to:
- New applicants.
- Existing employees who have applied for or indicated a specific desire to be considered for a different position.
- Existing employees subject to a review and consideration of criminal history because of a change in ownership, management, policy, or practice.
If an applicant voluntarily discloses information about their criminal history before a conditional offer, the employer cannot consider any information that is prohibited by the regulations until after it has decided whether to make a conditional employment offer.
There are certain exceptions to this requirement, including positions where the employer is required by law to conduct criminal background searches or restrict employment based on criminal history or other specified laws.
California employers remain strictly prohibited from considering certain types of criminal convictions at any time, including:
- Arrest/detention not leading to conviction.
- Referral/participation in a diversion program.
- Dismissed/sealed/expunged/statutorily eradicated convictions.
- Certain juvenile matters.
- Non-felony marijuana convictions over two years old.
Even if the employer shows that its policy or practice of considering conviction history is job-related and consistent with business necessity, adversely impacted persons may still try to allege a violation of FEHA by claiming that there is a less discriminatory policy or practice that serves the employer’s goals as effectively as the challenged policy or practice without significantly increasing the cost or burden on the employer.
California employers are subject to these and many additional requirements when considering the criminal history of applicants and employees that may not be required in other jurisdictions.
Contact Our Experienced Employment Law Attorneys in Beverly Hills, California Today
If you have been discriminated against for your criminal history when applying for a job in California, contact our skilled employment lawyers in Los Angeles County at (310)-776-3590 at Mehtani Law Offices to schedule a free consultation today to discuss your unique circumstances with a law firm that can help pursue real results for your case.