California Updates Criminal History Regulations

State Law Alert

September 18th, 2023

California Updates Criminal History Regulations

California’s Fair Employment and Housing Act (FEHA) regulations will be updated as of October 1, 2023. The updated regulations govern how employers with five or more employees can use criminal history information when making employment decisions. Here are highlights of the changes:

• The definition of “applicant” will now include existing employees that have applied for or expressed interest in a different position with the employer or whose criminal histories are reviewed because of a change in ownership, management, policy, or practice.
• Employers can’t say in job postings, on applications, or in other hiring materials that individuals with criminal histories won’t be hired. This includes statements like “no felons” or “must have a clean record.”
• If an applicant voluntarily discloses their criminal history, employers can’t consider that information until after a conditional job offer is made (assuming the record can be considered at all).
• The fact that a licensing, regulatory, or government agency board has licensed an applicant—despite their criminal history—should be considered strong evidence that their criminal history is not grounds for disqualification from that type of job.
• Employers can, but don’t have to, use the sample notices provided by the California Civil Rights Department when communicating with applicants about employment decisions based on criminal history.

If you are required by law to conduct criminal background checks, or if you regularly use criminal history information in making employment decisions, we recommend that you review the changes in full on the state’s Civil Rights Department website, here.