California's Civil Rights Department Adds More Detail to Regulations Regarding Consideration of Applicants' Criminal History

Proskauer Rose LLP

In the weeks and months since it changed its name from the Department of Fair Employment and Housing to the California Civil Rights Department (“CRD”), the agency has been busy. Most recently, the CRD released proposed modifications to the regulations under the Fair Employment and Housing Act (“FEHA”) related to the use and consideration of criminal history information in employment decisions—a process that is already exceedingly complicated thanks to overlapping privacy laws (e.g., the California Consumer Privacy Act), the Investigative Consumer Reporting Agencies Act, and local “ban the box” ordinances in Los Angeles and San Francisco.

Mercifully for employers, the latest set of proposed changes, mostly, help clarify their obligations—although they do impose some additional burdens on the process. The latest round of proposed changes includes the following:

• The caveat that employers, with limited exceptions, generally do not have a legal obligation to check the criminal history of an applicant or current employee; however, if they choose to do so, they must abide by the legal limitations described in the regulations.
• Clarifying what it means for the employer or the employer’s agent to be “required by law” to conduct a criminal background check such that the exemption from the prohibition against inquiring about or using any criminal history before a conditional offer of employment has been made applies. Specifically, the new regulations clarify that “[a] state, federal, or local law requiring another entity, such as an occupational licensing board, to conduct a criminal background check will not exempt an employer from the prohibition[].”
• Supplementing the level of detail of the individualized assessment an employer must undertake before taking an adverse action based solely or in part on the applicant’s conviction history, by including non-exhaustive considerations for each factor of the analysis.
• Adding a description of evidence of rehabilitation or mitigating circumstances that an applicant voluntarily may provide, including:

• • when the conviction led to incarceration, the applicant’s conduct during incarceration, including participation in work and educational or rehabilitative programming and “other prosocial conduct;”
  • the applicant’s employment since the conviction or completion of sentence;
  • the applicant’s community service and engagement since the conviction or completion of sentence, including but not limited to volunteer work for a community organization, engagement with a religious group or organization, participation in a support or recovery group, and other types of civic participation; and/or
  • the applicant’s other rehabilitative efforts since the completion of sentence or conviction or mitigating factors not captured above.

• A requirement that employers maintain any forms, documents, or information used to complete the forms described in the subsection on the Work Opportunity Tax Credit (“WOTC”) in confidential files separate from the applicant’s general personnel file and not use or disseminate these forms, documents, or information for any purpose other than applying for the WOTC.
• An expansion of the definition of “employer” to include “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.”

The CRD will accept written comments on these further proposed modifications until December 30, 2022. We will continue to monitor these regulations and provide any relevant updates after that.