By Marie Hulen, Esq.
California business owners should be aware that as of October 1, 2023, new regulations are in effect regarding the use of criminal history information when making employment decisions. Though many rules already exist restricting the consideration of criminal history before this update, these are brand new rules. California employers should be aware of how to comply. The consequences of non-compliance can include defending complaints made to the California Civil Rights Department and defending lawsuits claiming FEHA violations.
When Consideration of Criminal History Is Allowed
Generally, California employers cannot ask about, consider, or distribute information about a candidate’s criminal history before making a conditional offer of employment. Previously, employers could not look into a candidate’s criminal history unless: (1) the employer was a state or local agency, (2) the position was with a criminal justice agency, (3) the position was as a Farm Labor Contractor, or (4) the employer was otherwise required by law to look into an applicant’s criminal background. While these exceptions still apply, the law is now much more specific as to the restrictions on when and how an employer may consider criminal history. Notably, the following actions are explicitly prohibited:
- Inquiring about an applicant’s criminal history through any of the following: a job application, a background check, or an internet search; and
- Including statements in job advertisements, postings, or applications that indicate someone with a criminal history will not be considered for hire (such as “no felons” or “must have a clean record”).
If an applicant voluntarily discloses information about their criminal history before a conditional offer is made, that does not mean the information is fair game. The law insists that an employer cannot consider information volunteered by a candidate when deciding whether to make a job offer.
Also, if an employer (1) violates these rules, and (2) makes a conditional offer, then employer may not use an applicant’s failure to disclose criminal history against the applicant, including as a factor in a decision to deny the position conditionally offered.
As noted above, these requirements do not apply – both under the old law and the new law – if an employer is required by law to conduct a criminal background check. Importantly, the employer itself – not an external entity, such as an occupational licensing board – must be the one required by law to perform the background check. Typically, this exception won’t apply to private employers. It will most often apply to employers who are state or local agencies.
In sum, with very limited exceptions, private employers – including construction industry businesses – cannot consider criminal history before a conditional offer of employment is made, nor can they give potential job applicants the impression they will consider criminal history. This is true even if a job applicant voluntarily discloses information about their criminal history. Criminal history can only be considered if (1) required by law, which is rare, or (2) after a conditional offer of employment is made.
How Criminal History May Be Considered Without Violating the Law
Timing is everything. There are additional new rules on how criminal history may be considered even after a conditional offer of employment has been made. Specifically, if an employer intends to deny an applicant a job offer that was conditionally offered based solely or in part on the applicant’s criminal history, the employer must conduct a reasoned, evidence-based determination of whether an applicant’s criminal history has a direct and adverse relationship with specific duties of the job that justify denying the applicant the position. Essentially, California employers must be careful to take into account all circumstances surrounding the past criminal conviction, such as the age of the applicant at the time and the severity of the harm caused, and relate that to the open position.
In addition, if an employer decides to rescind a conditional offer of employment based on the criminal history of an applicant, the employer must provide the applicant with an explanation of their preliminary decision, and give the applicant a chance to respond with new information that may show how the potential effect of the applicant’s criminal history has been mitigated. This is not a new requirement. However, additions to the statute outline factors that an employer must consider if the applicant provides additional information. These factors amount to very carefully considering the circumstances surrounding the applicant’s history and whether that history will really have an impact on the applicant’s suitability as an employee. Further, if an employer’s final decision is to rescind a preliminary offer after considering any additional information provided by an applicant, an employer must include in its final decision a notification to the applicant of their right to contest the decision by filing a complaint with the California Civil Rights Department.
Overall, the new additions to the law are detailed and extensive. California employers must be cautious about whether, how, and when to consider an applicant’s criminal history, because the law favors job applicants. As noted above, one consequence of failing to follow this law is that an applicant may file a complaint with the California Civil Rights Department. Further, if an employer does not adhere to the new rules in this law – or even if an employer does adhere to the law, showing that its consideration of criminal history is permissibly job-related and a legitimate business necessity – any adversely impacted person may still file a lawsuit trying to allege a FEHA violation by (1) alleging that the employer did not follow the law, or (2) alleging that there is a less discriminatory policy or practice that serves the employer’s goals. The statute does not prohibit any and all consideration of an applicant’s criminal history, but it places a significant burden on employers to use such information sparingly and with great care.
Marie Hulen, Esq., is an associate attorney with the law firm of Dunn DeSantis Walt & Kendrick. Marie’s practice is focused on the representation of businesses that are involved in litigation and in counseling business owners regarding employment law.
Dunn DeSantis Walt & Kendrick provides a broad spectrum of legal services to businesses of all sizes, from small, local start-ups and non-profits to large, national companies. DDWK’s real estate development and construction practice includes representing all segments of the development and construction industries on both private and public projects.
You can find additional information and resources related to helping business owners and their businesses on the DDWK website.