Cal. Code Regs. Tit. 2, § 11017.1 - Consideration of Criminal History in Employment Decisions
Current through Register 2021 Notice Reg. No. 52, December 24, 2021
(a) Except in the circumstances addressed in
subdivisions (a)(1) - (4) below, employers and other covered entities
("employers" for purposes of this section) are prohibited from inquiring into,
considering, distributing, or disseminating information related to the criminal
history of an applicant until after the employer has made a conditional offer
of employment to the applicant. Employers are prohibited from inquiring about
criminal history on employment applications or from seeking such information
through other means, such as a background check or internet searches directed
at discovering criminal history, until after a conditional employment offer has
been made to the applicant. Employers who violate the prohibition on inquiring
into criminal history information prior to making a conditional offer of
employment may not, after extending a conditional offer of employment, use an
employee's pre-conditional offer failure to disclose criminal history
information as a factor in subsequent employment decisions, including denial of
the position conditionally offered. The prohibition against inquiring about or
using any criminal history before a conditional offer of employment has been
made does not apply in the following circumstances (though use of such criminal
history, either during the application process or during employment, is still
subject to the requirements in subdivisions (c) and (e) - (i) of this
regulation):
(1) If the position is one for
which a state or local agency is otherwise required by law to conduct a
conviction history background check;
(2) If the position is with a criminal
justice agency, as defined in Section
13101
of the Penal Code;
(3) If the
position is as a Farm Labor Contractor, as described in Section
1685
of the Labor Code; or
(4) If the
position is one that an employer or an employer's agent is required by any
state, federal, or local law to conduct criminal background checks for
employment purposes or to restrict employment based on criminal history.
Federal law, for purposes of this provision, includes rules or regulations
promulgated by a self-regulatory organization as defined in Section
3(a)(26)
of the Security Exchange Act of 1934,
15 U.S.C. §
78c(a)(26) .
(b) A labor contractor, union
hiring hall, and client employer are governed in the same way by section
11017.1 of these regulations as are other employers.
(1) A labor contractor or union hiring hall
may not decline to admit a worker to a pool or availability list, discontinue a
worker's inclusion in a pool or availability list, or decline to refer a worker
to a position with a client employer, because of the worker's criminal history
unless the labor contractor or union hiring hall has complied with the
procedures and requirements outlined in section 11017.1 of these regulations.
To the extent labor contractors or union hiring halls place applicants into a
pool of workers from which individuals may be assigned to a variety of
positions, the labor contractors or union hiring halls must still comply with
the requirements of section 11017.1, including the individualized assessment of
whether any conviction history being considered has a direct and adverse
relationship with the specific duties of the jobs for which the applicant may
be assigned from the pool or hall.
(2) If a labor contractor or union hiring
hall re-conducts inquiries into criminal history to maintain the eligibility of
workers admitted to a pool or availability list, then it must comply with the
procedures and requirements outlined in section 11017.1 of these regulations.
When re-conducting an inquiry, labor contractors or union hiring halls cannot
satisfy the requirements of subdivision (c) if they disqualify a worker from
retention in a pool based on conviction history that was already considered and
deemed not disqualifying for entry into the pool in the first place unless the
decision is based on new material developments such as changes to job duties,
legal requirements, or experience or data regarding the particular convictions
involved.
(3) A client employer may
inquire into or consider the conviction history of a worker supplied by a labor
contractor or union hiring hall only after extending a conditional offer of
employment to the worker and when following the procedures described in
subdivisions (a) through (d), unless the specific position is exempted pursuant
to subdivisions (a)(1)- (4). A client employer violates this section by
instructing labor contractors or union hiring halls to refer only workers
without conviction records, unless exempted by subdivisions (a)(1) -
(4).
(4) For purposes of section
11017.1 of these regulations only:
(A)
"Applicant" includes, in addition to the individuals within the scope of the
general definition in section
11008(a)
of these regulations, individuals who have been conditionally offered
employment, even if they have commenced employment during the period of time
the employer undertakes a post-conditional offer review and consideration of
criminal history. An employer cannot evade the requirements of Government Code
section
12952
or this regulation by having an individual lose their status as an "applicant"
by working before undertaking a post-conditional offer review of the
individual's criminal history.
(B)
"Employer" includes a labor contractor and a client employer.
(C) "Client employer" means a business
entity, regardless of its form, that selects workers from a pool or
availability list, or obtains or is provided workers to perform labor within
its usual course of business from a labor contractor.
(D) "Labor contractor" means an individual or
entity, either with or without a contract, which supplies a client employer
with, or maintains a pool or availability list of, workers to perform labor
within the client employer's usual course of business. This definition is not
intended to include Farm Labor Contractors.
(E) "Hiring hall" means an agency or office
operated by a union, by an employer and union, or by a state or local
employment service, to provide and place employees for specific jobs.
(F) "Pool or availability list" means
applicants or employees admitted into entry in the hiring hall or other hiring
pool utilized by one or more employers and/or provided by a labor contractor
for use by prospective employers.
(c) Consideration of Criminal History after a
Conditional Offer of Employment Has Been Made. Employers in California are
prohibited from inquiring into, considering, distributing, or disseminating
information regarding the following types of criminal history both after a
conditional offer has been made and in any other subsequent employment
decisions such as decisions regarding promotion, training, discipline, lay-off,
and termination:
(1) An arrest or detention
that did not result in conviction (Labor Code section
432.7
(see limited exceptions in subdivisions (a)(1) for an arrest for which the
employee or applicant is out on bail or on his or her own recognizance pending
trial and (f)(1) for specified positions at health facilities); Government Code
section
12952(for hiring
decisions) );
(2) Referral to or participation in a
pretrial or post-trial diversion program (Labor Code section
432.7
and Government Code section
12952);
(A) While employers are prohibited from
considering referral to or participation in a pretrial or post-trial diversion
program, it is permissible to consider these programs as evidence of
rehabilitation or mitigating circumstances after a conditional offer has been
made if offered by the applicant as evidence of rehabilitation or mitigating
circumstances.
(B) While employers
are prohibited from considering referral to or participation in a pretrial or
post-trial diversion program, until a pretrial or post-trial diversion program
is completed and the underlying pending charges or conviction dismissed,
sealed, or eradicated, employers may still consider the conviction or pending
charges themselves after a conditional offer is made.
(3) A conviction that has been judicially
dismissed or ordered sealed, expunged or statutorily eradicated pursuant to law
(e.g., juvenile offense records sealed pursuant to Welfare and Institutions
Code section
389
and Penal Code sections
851.7
or
1203.45)
or any conviction for which the person has received a full pardon or has been
issued a certificate of rehabilitation (Id.);
(4) An arrest, detention, processing,
diversion, supervision, adjudication, or court disposition that occurred while
a person was subject to the process and jurisdiction of juvenile court law
(Labor Code section
432.7);
and
(5) A non-felony conviction for
possession of marijuana that is two or more years old (Labor Code section
432.8).
(6) In addition to the limitations provided
in subdivisions (c)(1)-(5), employers that obtain investigative consumer
reports such as background checks are also subject to the requirements of the
Fair Credit Reporting Act (
15 U.S.C. §
1681 et seq.) and the California
Investigative Consumer Reporting Agencies Act (Civil Code section
1786
et seq.).
(7) Employers may also be
subject to local laws or city ordinances that provide additional
limitations.
(d)
Requirements if an Employer Intends to Deny an Applicant the Employment
Conditionally Offered Because of the Applicant's Conviction History.
(1) If an employer intends to deny an
applicant the employment position they were conditionally offered based solely
or in part on the applicant's conviction history, the employer must first make
an individualized assessment of whether the applicant's conviction history has
a direct and adverse relationship with the specific duties of the job that
justify denying the applicant the position. The standard for determining what
constitutes a direct and adverse relationship that justifies denying the
applicant the position is the same standard described in subdivision (g) of
this section that is used to determine whether the criminal conviction history
is job-related and consistent with business necessity. The individualized
assessment needs to include, at a minimum, consideration of the following
factors:
(A) The nature and gravity of the
offense or conduct;
(B) The time
that has passed since the offense or conduct and/or completion of the sentence;
and
(C) The nature of the job held
or sought.
(2) If, after
conducting an individualized assessment, the employer makes a preliminary
decision that the applicant's conviction history disqualifies the applicant
from the employment conditionally offered, the employer shall notify the
applicant of the preliminary decision in writing. The written notice to the
applicant may, but is not required to, justify or explain the employer's
reasoning for making the decision. However, the notice to the applicant must
include all of the following:
(A) Notice of
the disqualifying conviction or convictions that are the basis for the
preliminary decision to rescind the offer;
(B) A copy of the conviction history report
utilized or relied on by the employer, if any (such reports include, but are
not limited to: consumer reports, credit reports, public records, results of
internet searches, news articles, or any other writing containing information
related to the conviction history that was utilized or relied upon by the
employer); and
(C) An explanation
of the applicant's right to respond to the notice before the preliminary
decision rescinding the offer of employment becomes final and the deadline by
which to respond (which can be no less than five business days from the date of
receipt of the notice). If notice is transmitted through a format that does not
provide a confirmation of receipt, such as a written notice mailed by an
employer without tracking delivery enabled, 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. The explanation shall inform the applicant that the response may
include submission of evidence challenging the accuracy of the conviction
history report that is the basis for rescinding the offer, evidence of
rehabilitation or mitigating circumstances, or both. The types of evidence that
may demonstrate rehabilitation or mitigating circumstances may include, but are
not limited to: the length and consistency of employment history before and
after the offense or conduct; the facts or circumstances surrounding the
offense or conduct; whether the individual is bonded under a federal, state, or
local bonding program; successful completion, or compliance with the terms and
conditions, of probation or parole; and rehabilitation efforts such as
education or training. If, within five business days of receipt of the notice
(or any later deadline set by the employer), the applicant notifies the
employer in writing that the applicant disputes the accuracy of the conviction
history being relied upon and that the applicant is taking specific steps to
obtain evidence supporting the applicant's assertion, then the applicant shall
be permitted no less than five additional business days to respond to the
notice before the employer's decision to rescind the employment offer becomes
final.
(3) The employer
shall consider any information submitted by the applicant before making a final
decision regarding whether to rescind the conditional offer of employment. If
the employer makes a final decision to rescind the conditional offer and deny
an application based solely or in part on the applicant's conviction history,
the employer shall notify the applicant in a writing that includes the
following:
(A) The final denial or
disqualification decision reached. The employer may also include, but is not
required to include, the justification or an explanation of the employer's
reasoning for reaching the decision that it did;
(B) Any procedure the employer has for the
applicant to challenge the decision or request reconsideration; and
(C) The right to contest the decision by
filing a complaint with the Department of Fair Employment and
Housing.
(e)
Disparate Treatment. The Act also prohibits employers from treating applicants
or employees differently in the course of considering criminal conviction
history, or any evidence of rehabilitation or mitigating circumstances, if the
disparate treatment is substantially motivated by a basis enumerated in the
Act.
(f) Consideration of Other
Criminal Convictions and the Potential Adverse Impact. In addition to the types
of criminal history addressed in subdivision (c) that employers are explicitly
prohibited from inquiring about or considering unless an exception applies,
consideration of other forms of criminal convictions, not enumerated above, may
have an adverse impact on individuals on a basis protected by the Act,
including, but not limited to, gender, race, and national origin. An applicant
or employee bears the burden of demonstrating that the policy of considering
criminal convictions has an adverse impact on a basis enumerated in the Act.
For purposes of such a determination, adverse impact is defined at Sections
11017 and
11010
and the Uniform Guidelines on Employee Selection and
Procedures ( 29 C.F.R. 1607 (1978)) incorporated by reference in
Section
11017(a) and
(e) . The applicant(s) or employee(s) bears
the burden of proving an adverse impact. An adverse impact may be established
through the use of conviction statistics or by offering any other evidence that
establishes an adverse impact. State- or national-level statistics showing
substantial disparities in the conviction records of one or more categories
enumerated in the Act are presumptively sufficient to establish an adverse
impact. This presumption may be rebutted by a showing that there is a reason to
expect a markedly different result after accounting for any particularized
circumstances such as the geographic area encompassed by the applicant or
employee pool, the particular types of convictions being considered, or the
particular job at issue.
(g)
Establishing "Job-Related and Consistent with Business Necessity."
(1) If the policy or practice of considering
criminal convictions creates an adverse impact on applicants or employees on a
basis enumerated in the Act, the burden shifts to the employer to establish
that the policy is nonetheless justifiable because it is job-related and
consistent with business necessity. The criminal conviction consideration
policy or practice needs to bear a demonstrable relationship to successful
performance on the job and in the workplace and measure the person's fitness
for the specific position(s), not merely to evaluate the person in the
abstract. In order to establish job-relatedness and business necessity, any
employer must demonstrate that the policy or practice is appropriately
tailored, taking into account at least the following factors:
(A) The nature and gravity of the offense or
conduct;
(B) The time that has
passed since the offense or conduct and/or completion of the sentence;
and
(C) The nature of the job held
or sought.
(2)
Demonstrating that a policy or practice of considering conviction history in
employment decisions is appropriately tailored to the job for which it is used
as an evaluation factor requires that an employer demonstrate the applicant's
conviction history has a direct and adverse relationship with the specific
duties of the job that justify denying the applicant the position. Bright-line
conviction disqualification or consideration policies or practices that include
conviction-related information that is seven or more years old are subject to a
rebuttable presumption that they are not sufficiently tailored to meet the
job-related and consistent with business necessity affirmative defense (except
if justified by subdivision (h) below). An individualized assessment must
involve notice to the adversely impacted employee (before any adverse action is
taken) that they have been screened out because of a criminal conviction; a
reasonable opportunity for the individuals to demonstrate that the exclusion
should not be applied due to their particular circumstances; and consideration
by the employer as to whether the additional information provided by the
individuals or otherwise obtained by the employer warrants an exception to the
exclusion and shows that the policy as applied to the employee is not job
related and consistent with business necessity.
(3) Before an employer may take an adverse
action such as discharging, laying off, or declining to promote an adversely
impacted individual based on conviction history obtained by a source other than
the applicant or employee (e.g. through a credit report or internally generated
research), the employer must give the impacted individual notice of the
disqualifying conviction and a reasonable opportunity to present evidence that
the information is factually inaccurate. If the applicant or employee
establishes that the record is factually inaccurate, then that record cannot be
considered in the employment decision.
(h) Compliance with Federal or State Laws,
Regulations, or Licensing Requirements Permitting or Requiring Consideration of
Criminal History. In some instances, employers are subject to federal or state
laws or regulations that prohibit individuals with certain criminal records
from holding particular positions or occupations or mandate a screening process
employers are required or permitted to utilize before employing individuals in
such positions or occupations (e.g.,
21 U.S.C.
§
830(e)(1)(G) ; Labor
Code sections
432.7).
Examples include, but are not limited to, government agencies employing
individuals as peace officers, employers employing individuals at health
facilities where they will have regular access to patients, and employers
employing individuals at health facilities or pharmacies where they will have
access to medication or controlled substances. Some federal and state laws and
regulations make criminal history a determining factor in eligibility for
occupational licenses (e.g.,
49 U.S.C. §
31310 ). Compliance with federal or state
laws or regulations that mandate particular criminal history screening
processes, or requiring that an employee or applicant possess or obtain any
required occupational licenses constitute rebuttable defenses to an adverse
impact claim under the Act.
(i)
Less Discriminatory Alternatives. If an employer demonstrates that its policy
or practice of considering conviction history is job-related and consistent
with business necessity, adversely impacted employees or applicants may still
prevail under the Act if they can demonstrate that there is a less
discriminatory policy or practice that serves the employer's goals as
effectively as the challenged policy or practice, such as a more narrowly
targeted list of convictions or another form of inquiry that evaluates job
qualification or risk as accurately without significantly increasing the cost
or burden on the employer.
Notes
Note: Authority cited: Section
12935
2. Amendment of section and Note filed 7-6-2020; operative
The following state regulations pages link to this page.
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.