Legal Update: New Background Check Requirements Take Effect October 1, 2023 – What You Need to Know 9.28.23

Starting October 1, 2023, California employers will have to review their background check process to comply with new regulations in the Fair Chance Act. Under the California Fair Chance Act, employers are prohibited from asking about an applicant’s criminal history until after a conditional offer of employment is made. The new regulations introduce additional steps for employers to follow when considering criminal history in hiring.

Here are the major points you need to know about the new regulations:

  • The definition of employer has expanded to not only direct employers but also entities acting as agents or evaluating an applicant’s criminal history on behalf of the employer, such as staffing agencies or entities obtaining workers from a pool or availability list.
  • The definition of applicant has broadened to include not only new applicants but existing employees who apply or are considered for new positions within the company, as well as existing employees who are subject to review and consideration of criminal history due to a change in ownership, management, policy, or practice.
  • Job advertisements, postings, applications, or other recruiting materials cannot include statements indicating that an applicant with a criminal history will not be considered. If you are a Los Angeles or San Francisco employer, you must include affirmative language that you will consider qualified applicants with criminal histories in a manner with the local ordinance.
  • Employers are required to conduct an individualized assessment of each candidate with a criminal record before making a hiring decision. This assessment involves considering the nature and gravity of the offense, the time that has elapsed since the conviction, and the nature of the job.
  • Employers cannot consider information voluntarily provided by the applicant about their criminal history prior to making an offer. This includes internet searches made by the employer about the applicant. Employers can consider the information after the decision of whether to make a conditional employment offer is made.
  • Employers can only consider criminal records that are directly related to the position in question. Employers cannot reject an applicant solely based on their criminal record unless the conviction has a clear and specific correlation to the job duties.
  • Employers must demonstrate that their screening policies are job-related and necessary for the business. Vague and overly broad policies that disproportionately impact individuals with criminal records will be considered discriminatory.
  • Employers cannot consider or ask an applicant to disclose any record of an arrest that did not result in a conviction; non-felony convictions of marijuana possession that are more than two years old; and convictions seven or more years old from the date of disposition.
  • If an employer decides to deny an applicant’s employment based on the applicant’s criminal record, an employer must provide written notice of their decision, including details about the convictions considered, information relied upon, and that the applicant as an opportunity to respond. Applicants will now have five business days from the time they receive the written notice to respond and provided any mitigating and rehabilitating evidence. If provided, employers must consider any mitigating or rehabilitating evidence and conduct a reassessment.

The new regulations outlined above are rather complex. If you conduct background checks during your onboarding process, now is the time to revisit your policies and procedures and schedule a call with us to discuss whether you need to update your practices.

As a reminder, you may not discriminate against any applicant based on their criminal history when considering them for a position.