What Employers Need to Know Regarding Criminal Histories of Job Applicants
On October 1, 2023, modifications to existing employment regulations found in California Code of Regulations section 11017.1 regarding criminal history of job applicants became effective. Please note that the following is a summary of the updated regulations. The summary does not reflect all the changes made or all of the procedural requirements.
Consideration of Criminal History in Employment Decisions
Prohibition of Consideration of Criminal History Prior to a Conditional Offer of Employment
Employers and other covered entities are prohibited from:
- Inquiring into, considering, distributing, or disseminating information related to the criminal history of an applicant until after the employer has made a conditional offer of employment to the applicant. This prohibition includes, but is not limited to, “inquiring about criminal history through an employment application, background check, or internet searches.”
- 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.”
Employers who violate the prohibition on inquiring into criminal history prior to making a conditional offer of employment may not, after extending a conditional offer of employment, use an applicant’s failure to disclose criminal history prior to the conditional offer as a factor in subsequent employment decisions, including denial of the position conditionally offered.
Requirements if an Employer Intends to Deny an Applicant the Employment Conditionally Offered Because of the Applicant’s Conviction History
If an employer intends to deny an applicant the employment position they were conditionally offered based solely or in part on the applicant’s conviction history, the employer must first conduct an individualized assessment (a reasoned, evidence-based determination) of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.
The individualized assessment must include, at a minimum, consideration of the following factors:
- The nature and gravity of the offense or conduct. Consideration of this factor may include but is not limited to:
- The specific personal conduct of the applicant that resulted in the conviction;
- Whether the harm was to property or people;
- The degree of the harm (e.g., amount of loss in theft);
- The permanence of the harm;
- The context in which the offense occurred;
- Whether a disability, including but not limited to a past drug addiction or mental impairment, contributed to the offense or conduct, and if so, whether the likelihood of harm arising from similar conduct could be sufficiently mitigated or eliminated by a reasonable accommodation, or whether the disability has been mitigated or eliminated by treatment or otherwise;
- Whether trauma, domestic or dating violence, sexual assault, stalking, human trafficking, duress, or other similar factors contributed to the offense or conduct; and/or
- The age of the applicant when the conduct occurred.
- The time that has passed since the offense or conduct and/or completion of the sentence. Consideration of this factor may include but is not limited to:
- The amount of time that has passed since the conduct underlying the conviction, which may significantly predate the conviction itself; and/or
- When the conviction led to incarceration, the amount of time that has passed since the applicant’s release from incarceration.
- The nature if the job held or sought. Consideration of this factor may include but is not limited to:
- The specific duties of the job;
- Whether the context in which the conviction occurred is likely to arise in the workplace; and/or
- Whether the type or degree of harm that resulted from the conviction is likely to occur in the workplace.
Employers shall consider any information submitted by the applicant before making a final decision regarding whether or not to rescind the conditional offer of employment. When considering evidence of rehabilitation or mitigating circumstances provided by the applicant, or by another party at the applicant’s request, the employer may consider, but is not limited to, the following factors, in addition to the factors set forth above, as applicable:
- 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 history 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 in the above subfactors.
If you have any questions about this topic or any other legal matter, please contact the SSCE attorney you work with for further assistance.