CHA News Article

New Criminal Background Regulations Approved
Rules will take effect July 1

The Office of Administrative Law (OAL) has approved new regulations, adopted by the California Fair Employment and Housing Council (FEHC), concerning employers’ use of criminal background information when making employment decisions. The regulations, which take effect July 1, require employers to demonstrate that any criminal history information sought is job-related and consistent with a business need. To meet this obligation, employers may either 1) conduct an individual assessment of circumstances and qualifications of applicants excluded by the conviction screen and determine whether an exception is warranted, or 2) demonstrate that its conviction disqualification policy, though not based on individual assessment, nonetheless properly distinguishes between those who do and do not pose an acceptable level of risk.

Any policy that is not based on individual assessment and is seven or more years old will be presumed not to meet the standards of the new regulations; employers must rebut this presumption proactively. Additionally, prior to taking any adverse action, employers who obtain criminal information from a source other than the applicant must notify the individual and provide him or her an opportunity to challenge the information’s accuracy.

While the regulations prohibit employers from asking applicants about arrest history, current law (Labor Code Section 432.7) allows health facilities to obtain some arrest information in situations where the applicant would have access to patients or drugs.  The regulations continue to allow those inquiries.

Earlier this year, Assemblymember McCarty (D-Sacramento) introduced AB 1008, which — in addition to covering the topics now regulated by the FEHC — would ban private employers from seeking criminal history information on an employment application. That bill has not yet been heard in committee, and its status is uncertain given the adoption of the regulations.