Employment Law Bulletin | August 31, 2023

Coming October 2023:  The California Civil Rights Department Approves New Regulations Covering Background Checks

The California Civil Rights Department (CRD) has approved a set of updated regulations that expand and clarify the current rules regarding employer-conducted background checks.  Specifically, the new regulations provide additional guidance on the handling of pre-employment background checks, with specific attention given to the type of information that should be considered when an employer is deciding whether to rescind a job offer because of an applicant’s conviction history. Notably, the regulations apply to most employers but continue to include certain exemptions for criminal justice agencies, farm labor contractors and those who are required by law to conduct background checks.

Existing law already requires California employers who conduct background checks to do so only after a conditional offer has been made to an “applicant.”  If an employer discovers a conviction in the applicant’s criminal history, it must conduct an individualized assessment that takes into account the (1) nature and gravity of the offense, (2) time that has elapsed since the offense or completion of sentence, and (3) nature of the job held or sought.

Starting October 1, 2023, the new law makes clear that employers cannot circumvent these obligations by making statements such as “No Felons” or “Must Have Clean Record” on job advertisements, applications, postings or any other materials.  In addition, employers conducting background checks must apply these rules to both non-employee applicants and the following categories of existing employees:  (1) employees who have begun employment pending a background check, (2) existing employees who have applied or indicated a specific desire to be considered for a different position, and (3) existing employees who are subject to a review and consideration of criminal history because of a change in ownership, management, policy, or practice.

In an effort to assist employers with the individualized assessment process, the regulations now contain lists of the different types of information that should be taken into account when conducting the assessment.  The updated regulations and corresponding lists can be accessed here.

As before, if an employer decides to revoke a job offer because of an applicant’s conviction history, the employer must notify the applicant of the preliminary decision in writing.  Once notified, the deadline for the applicant to respond must be at least five business days from the date of receipt of the notice.  Applicants who choose to appeal the preliminary decision can do so by submitting mitigating evidence that supports reconsideration.   Employers who receive mitigating evidence are required to reassess the applicant’s suitability for the job.  If, after considering this evidence, the employer still wants to revoke the job offer, it must send a final notice informing the applicant of its decision and their right to file a complaint with the CRD.

The current regulations contain no guidance for employers on what should be considered when performing a reassessment.  To remedy this, the new regulations include examples of the various acceptable information and documentation that should be taken into account.  This information may include the applicant’s age when the conduct occurred, certificates of rehabilitation, letters from teachers, counselors, probation officers or documentation confirming the existence of a disability.  However, an employer may not require an applicant to provide a particular fact or specific document in order to be reconsidered for employment.

The updated regulations also clarify how the timing of the receipt of notice should be calculated.  Specifically, if the notice is transmitted through a format that does not provide a confirmation of receipt, such as a mailed notice with no tracking, the notice shall be deemed received five calendar days after the mailing is deposited for delivery for California addresses, ten calendar days after the mailing for addresses outside of California, and twenty calendar days after mailing for addresses outside of the United States.  If the notice is transmitted through email, the notice shall be deemed received two business days after it is sent.

It’s enough to make you wonder if it’s worth performing background checks in the first place, right?

The CRD has created six helpful forms to assist employers in complying with the regulation’s requirements.  The forms include an Ad and App Compliance Statement, Conditional Job Offer Letter, Individualized Assessment Form, Preliminary Notice to Revoke Job Offer, Individualized Reassessment Form and Final Notice to Revoke Job Offer.  All forms can be found here.

As mentioned above, the approved regulations will go into effect on October 1, 2023, so it’s important to audit your practices now if you haven’t already done so.  If you have questions or need help with your background check procedures, please reach out to an SMT employment law attorney.

Off-Duty Cannabis – Off Limits Beginning January 1, 2024

Starting the first of next year, it will be unlawful for California employers to discriminate against an applicant or employee when making decisions related to hiring, termination, or any term or condition of employment based upon either (1) the use of cannabis off the job and away from the workplace; or (2) an employer-required drug screening test that found nonpsychoactive cannabis metabolites.

Despite this new limitation, the law continues to allow employers to consider tests that do not screen for nonpsychoactive cannabis metabolites and, as has always been the case, employers may continue to take action in keeping the workplace drug-and alcohol-free, including disciplining employees for possession or impairment while on-the-job.

As with the background check regulations, there are limited exceptions under the new law for certain applicants and employees in the building and construction trades and those requiring federal background investigation or clearance.

If you need assistance with your drug testing policies and procedures or have questions on this new law, please contact an SMT employment law attorney

Kari J. Brown

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

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