Beginning October 1, 2023, the California Fair Employment and Housing Act’s regulations covering the use of an applicant’s criminal history in employment decisions will be amended. Some of these amendments include:
- Expansion of the prohibitions against employers asking about or considering an applicant’s criminal history prior to making a conditional job offer. They still cannot ask about criminal histories on an application, background check, or internet searches. Additionally, they cannot add language to job ads, postings, or applications that persons with criminal history will not be considered for work, e.g., putting “No Felons” or “Must Have a Clean Record” on job postings.
- Requiring a reasoned, evidence-based determination (about whether criminal history has a direct and adverse relationship with the specific job duties) when an employer is conducting its initial, individualized assessment when it is going to deny an applicant the job that they were conditionally offered because of their conviction history.
- Expansion of what considerations an employer’s individual assessment must include. For instance, employers must consider the applicant’s specific personal conduct that resulted in their conviction, whether harm was to property or people and its permanence, whether a disability (including past drug addiction or mental impairment) contributed to it, whether trauma or domestic violence contributed to it, etc.
- Any evidence of rehabilitation or mitigating circumstances provided by an applicant—as part of their challenging the accuracy of a criminal history report an employer used for its preliminary decision to rescind the applicant’s job offer—is optional and may only be voluntarily provided by the applicant or another party at the applicant’s request.
- Redefining applicants to include existing employees who applied or want to be considered for a different position with their current employer and existing employees who are subject to review and consideration of their criminal history because of a change in ownership, management, policy, or practice.
The amended regulations also include additional expansions to the documentary evidence provisions, employer prohibitions, and notice requirements. The state is expected to update its mandatory postings and notices closer to the October effective date.
California Civil Rights Council Criminal History Regulations were approved by the Office of Administrative Law on July 24, 2023.
On July 11, 2023, a California appeals court issued a ruling regarding employee expense reimbursement. In this case, the court found that expenses incurred by remote workers that were directly related to their work (e.g., internet access, telephone service, a telephone headset, a computer, and accessories) were to be reimbursed by the employer despite the fact that the employees were working from home as the result of a COVID-19 quarantine order as opposed to a direction from the employer. The court found that the plain language of Cal. Labor Code § 2802(a) requires employers to reimburse all necessary expenses that were the direct consequence of employees performing their duties regardless of whether the employer itself was the direct cause of the need for the expense.
Resourcing Edge will continue to monitor this in the future and provide relevant updates accordingly.