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The California Office of Administrative Law approved a regulatory action regarding the consideration of conviction history for employment decisions.

About The Regulatory Action

In July 2023, California’s Office of Administrative Law passed a regulatory action that amends how employers may consider criminal records. It covers any “policy or practice of an employer or other covered entity that has an adverse impact on employment opportunities of individuals” unless the policy is related to and consistent with a business necessity.

The action says that, with some exceptions, employers are prohibited from:

• Inquiring about criminal history through an employment application, background check or web search until they have extended a conditional job offer.
• Including statements such as “must have a clean record” or “do not apply if you have a conviction" on job advertisements, applications or related materials.

Employers are defined as “any entity that evaluates the application’s conviction history on behalf of an employer, or acts as an agent of an employer, directly or indirectly.”

When Can CA Employers Run Background Checks

Employers will still be permitted to run background checks on job applicants. According to the regulatory action, this can occur after they have extended a conditional job offer.

If one or more convictions are returned in a background check and the employer considers taking an adverse action, they must first conduct an individualized assessment for each offense. This includes weighing several factors, such as the severity of an offense, whether it is relevant to the position sought and how long ago it occurred. Before rescinding an offer, California employers will be required to provide a specific notice to the applicant.

Exceptions

Most employers in the Golden State will be covered by this action, but there are some exceptions. These laws will not apply if:

• The employer is a state or local agency that is required by law to conduct a background check.
• The position is with a criminal justice agency.
• The position is for a Farm Labor Contractor.
• There is any state, federal or local law that requires a screening and restricts employment based on criminal history.

Employers Should Prepare

Organizations that operate in California should be aware of and prepared for this action, which goes into effect on October 1, 2023. We recommend consulting with counsel to ensure your hiring and screening policies are up to date and compliant with all relevant laws.

Read the notice.

Running Background Checks

There are numerous laws that are intended to help people get second chances. Studies have shown that individuals who have any type of criminal record often have trouble finding certain necessities such as employment and housing. It remains critical for employers to screen applicants, contractors and volunteers before allowing them to represent the business.

If your organization needs background checks, please contact us. Our comprehensive reports help clients make informed decisions, maintain safe workplaces and conduct due diligence. We can help you customize screening packages that suit your particular needs and comply with applicable laws and best practices. Backgrounds Online is based in California and available to assist you Monday through Friday from 5am to 6pm PT.