New Criminal History Hiring Practices in California: What HR Pro’s Need to Know

New Criminal History Hiring Practices in California: What HR Pro's Need to Know

For years, California's Fair Chance Act has been shaping how employers consider criminal history in their hiring processes. As of July 24, 2023, significant modifications have been approved, set to roll out on October 1, 2023.

This article dives into the key alterations HR professionals need to be aware of to ensure compliance and fair hiring practices. Be sure to read it thoroughly and/or contact your legal advisor. Join us on September 27 when we will partner with CEA to cover these changes in more detail.

Key Changes

1. Delayed Inquiry into Criminal History
   Employers must wait until after extending a conditional job offer to ask about or consider an applicant's criminal history. This also applies to existing employees in scenarios such as promotions, training, layoffs, or terminations. An important expansion is that the definition of "applicant" now encompasses existing employees being evaluated due to organizational changes in ownership, management, policies or practices.
   
   
2. Transparent Job Advertisements
   It's now prohibited to include statements in job ads that suggest individuals with criminal history won't be considered. This helps promote inclusivity from the very start of the recruitment process.
   
   
3. Voluntary Disclosure Timing
   If an applicant voluntarily discloses their criminal history before receiving a conditional offer, the employer cannot consider this information until after deciding on the offer. This ensures that initial judgments are not swayed by such disclosures.
   
   
4. Exceptions for Mandated Checks
   Employers exempted from these regulations are those compelled by law to conduct criminal background checks, for example, Federal employees. It's clarified that this exemption applies only if the employer is legally mandated to conduct the background check, not if another entity, such as a licensing board, is required to do so.
   
   
5. Initial and Thorough Individualized Assessment
   When considering an applicant's criminal history, employers are required to conduct an individualized assessment that takes into account the nature of the offense, time passed since the incident, and the relevance to the job. This helps ensure a more informed decision-making process by gathering essential information beforehand. The revised regulations offer illustrative examples to aid this assessment. This assessment must be completed before sending a preliminary decision notice.
   
   
6. Rehabilitation and Mitigating Evidence
   Applicants are given the chance to present evidence of rehabilitation or mitigating circumstances voluntarily. This can include factors such as trauma or disabilities that may have influenced their past actions.
   
   
7. Transparent Evaluation Process
   Employers are prohibited from mandating specific disclosures or requiring certain information from applicants. This promotes a fair and open evaluation process.
   
   
8. Responsive Reassessment
   If an applicant provides evidence of rehabilitation or mitigation in response to a preliminary decision notice, employers must reevaluate the situation, considering the additional information.

Preparing for These Changes

In light of these regulatory shifts, it's wise for employers to conduct a thorough review of their background screening practices with experienced legal counsel. Additionally, remember that other jurisdictions, such as Illinois, New York, and Wisconsin, have their own "job relatedness" requirements for using criminal history information. Ensuring compliance with regulations like the Fair Credit Reporting Act (FCRA) and other state-specific statutes is crucial, as employers have faced lawsuits over their background check processes.

The Fair Chance Act's updates mark a significant step toward fair and inclusive hiring practices. HR professionals in California should be proactive in adapting their processes and policies to align with these changes, fostering a just and transparent employment environment for all. By understanding and embracing these modifications, HR teams can navigate the evolving landscape of employment law with confidence and professionalism.

We know hiring managers struggle to get timely and comprehensive information about the candidates they want to hire. At Occuscreen, we sweat the details and offer a simple-to-use online portal to request and track results. WE CARE about your success and are there to support you every step of the way.

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