California has implemented new regulations, effective October 1, 2023, that significantly change the employer criminal background check process for California applicants and employees. The following answers to ten frequently asked questions (FAQs) provide an explanation of how California’s new regulations will expand the California Fair Chance Act.
- The new California background check regulations will require employers to conduct a more in-depth analysis using new evaluation factors before making adverse employment decisions based on criminal conviction history.
- Damages for failure to consider the new criminal evaluation factors include such things as back pay, front pay, and hiring or reinstatement.
- California’s new background check regulations take effect on October 1, 2023.
Question 1. What’s happening on October 1 for California background checks?
Answer 1. Employers must begin using a new process, including a more in-depth analysis using new evaluation factors, before making adverse employment decisions based on criminal conviction history.
Q2. What are some of the new evaluation factors employers should consider?
A2. The new regulations list subfactors that employers are required to consider:
- 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;
- The age of the applicant when the conduct occurred;
- The amount of time that has passed since the conduct underlying the conviction, which may significantly predate the conviction itself;
- When the conviction led to incarceration, the amount of time that has passed since the applicant’s release from incarceration;
- 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.
In addition, the new regulations require employers to consider any evidence they may possess of an applicant’s or employee’s rehabilitation or mitigating circumstances, which list includes some of the above.
Q3. Some of the new evaluation factors touch on sensitive issues, like alcoholism and domestic abuse. How do we comply with both the new background check requirements as well as protections on protected characteristic like former alcoholism?
A3. There is tension between the two sets of requirements. Some employers are communicating the factors to applicants/employees and inviting them to provide relevant information, without asking directly for specific information or requiring submission of any such information.
Q4. I hear some employers are using a series of pre-adverse action letters to comply with the new requirements. Is that a requirement?
A4. Using a series of pre-adverse action letters to comply with federal and California requirements (including conveying and soliciting information on the new evaluation factors and the traditional three federal factors) seems to be a logical way to approach the new California requirements, although California has not addressed this approach. We may know more as time passes, and we get more experience with these new requirements and/or more guidance is issued.
Q5. Where can I find sample letters?
A5. California and Los Angeles step-by-step instructions, pre-adverse action letters, adverse action letters, and law summaries (that are continually updated as the law changes and evolves) are available on the Ogletree Deakins Client Portal to Premium-level subscribers. They also are available on a one-time flat-fee basis (see below for further information). Although the California Civil Rights Department has provided sample letters on its website, there may be some issues with those letters, including the inclusion of factors not expressly required by the new California regulations.
Q6. What are the damages for failure to consider the new California criminal evaluation factors?
A6. Damages are the same as for Fair Employment and Housing Act violations and appear to be broad, including back pay, front pay, hiring or reinstatement, promotion, out-of-pocket expenses, policy changes, training, reasonable accommodations, damages for emotional distress, punitive damages, and attorneys’ fees.
Q7. Does the related City of Los Angeles criminal background check law apply to individuals who live in Los Angeles, work in Los Angeles, or both?
A7. The City of Los Angeles ordinance applies to employees who work in Los Angeles an average of at least two hours a week, including those who work remotely from their home in Los Angeles—for employers that are located or doing business in Los Angeles.
Q8. Can employers consider sex offender registry information for California applicants and employees?
A8. Employers generally may not consider information they or their background check vendors find on a sex offender registry. However, employers may consider criminal convictions (that also may appear on the registry) learned in some other manner, like through a criminal background check—listed in the “convictions” section, not the “sex offender” section, of the background check report—reviewing the information using the new California, the federal, and any applicable locality evaluation factors.
Q9. Why are California background checks so slow, especially in the past few years?
A9. In 2022, due to a court decision and Governor Gavin Newsom’s subsequent veto of a bill passed to correct the issue, driver’s license numbers and dates of birth in court records became largely inaccessible to the public, including background check vendors/consumer reporting agencies (CRAs). As a result, CRAs have been struggling to verify the identities of criminal defendants in state court searches, seriously limiting their ability to report criminal records and delaying background check results significantly for employers.
Q10. Can I just do an internet search for information instead of a formal background check?
A10. The new California regulations require employers to consider the new evaluation factors and engage in the required analysis whether they learn of the applicant’s or employee’s conviction history from a background check vendor/consumer reporting agency or from some other source. There also are some nonintuitive restrictions and requirements on employer use of internet searches on California applicants and employees.