The California Fair Employment and Housing Council (FEHC) has issued a Notice of Proposed Rulemaking announcing proposed amendments to its regulation regarding the consideration of an applicant’s criminal history in employment decisions.

A public hearing on the amendments will be held on August 10, 2022, at 1:00 p.m. at the California State Building in Oakland (1515 Clay Street, Second Floor, Room 11). The public can also submit written comments until 5:00 p.m. on August 10th by emailing them to FEHCouncil@dfeh.ca.gov or sending them to the Fair Employment and Housing Council, c/o Rachael Langston, Senior Fair Employment and Housing Counsel, Department of Fair Employment and Housing, 2218 Kausen Drive #100, Elk Grove, CA 95758.

The regulation at issue is California Code of Regulations, title 2, section 11017.1, which implements both Government Code 12952 and Labor Code section 432.7. These two code provisions restrict what employers may ask or consider about an applicant’s criminal history. Notably, both provisions have themselves been amended in recent years, no doubt prompting the FEHC’s current rulemaking action.

The following examines the substantive changes of the FEHC’s proposed amendments:

  • The FEHC proposes to clarify that an employer may not post recruiting materials with language indicating that individuals with a criminal history will not be considered for hire: “Employers are prohibited from including statements in job advertisements, postings, applications, or other materials that no persons with criminal history will be considered for hire, such as ‘No Felons’ or ‘Must Have Clean Record.’”
  • The FEHC proposes to add language reminding employers that they may use the sample individualized assessment form available on the Department’s website.
  • The FEHC proposes to provide additional examples of the types of evidence that an employee can use to demonstrate rehabilitation or mitigating circumstances when responding to an employer’s notice of a preliminary decision that the applicant’s conviction history disqualifies them from the position: ” … the applicant’s current or former participation in self-improvement efforts, including but not limited to school, job training, counseling, community service, and/or a rehabilitation program; whether the conduct arose from the applicant’s status as a survivor of domestic violence, sexual assault, dating violence, stalking, or comparable offenses against the individual; whether the conduct arose from the applicant’s disability or disabilities and, if so, whether the likelihood of harm arising from similar conduct could be sufficiently mitigated or eliminated by a reasonable accommodation for the applicant’s disability or disabilities; the likelihood that similar conduct will recur, …”
  • Similarly, the FEHC proposes adding a non-exhaustive list of examples of the various forms of documentation that can show rehabilitation or mitigating circumstances, e.g.: “certificates or other documentation of participation in, enrollment in, or completion of an educational, vocational, training, counseling, community service, or rehabilitation program; letters from current or former teachers, counselors, supervisors, coworkers, parole or probation officers, or others who know the applicant; police reports, protective orders, and/or documentation from healthcare providers, counselors, case managers, or victim advocates who can attest to the applicant’s status as a survivor of domestic or dating violence, sexual assault, stalking, or comparable offenses; documentation confirming the existence of a disability or disabilities.”
  • The FEHC proposes to describe what constitutes an “adverse impact.” In addition to the specifically enumerated types of criminal history that employers are prohibited from asking about, employers are also prohibited from asking about any other forms of criminal convictions may have an “adverse impact” on an applicant on a basis protected by the Act. Thus, the proposed definition states that an “adverse impact includes a substantial disparity in the rate of selection in hiring, promotion, or other employment decisions which works to the disadvantage of groups of individuals on the basis of any characteristics protected by” the Fair Employment and Housing Act (FEHA).
  • Finally, the FEHC proposes to clarify that an employer seeking the federal Work Opportunity Tax Credit (WOTC) is not exempt from FEHA or this regulation. According to the FEHC, the amendment “will alleviate common confusion and to provide guidance to employers about how they may seek a WOTC without violating the FEHA or this regulation, by clarifying what types of inquiries may be made of applicants, when particular inquiries may be made, and how information obtained from those inquiries may be considered.”

For in-depth discussion and analysis criminal history in hiring, check out CEB’s Advising California Employers and Employees.

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