Cal. Code Regs. Tit. 2, § 12269 - Specific Practices Related to Criminal History Information

Current through Register 2021 Notice Reg. No. 52, December 24, 2021

(a) It is unlawful for a person to:
(1) Seek, consider, use, or take an adverse action based on criminal history information about any arrest that has not resulted in a criminal conviction, or based on information indicating that an individual has been questioned, apprehended, taken into custody or detained, or held for investigation by a law enforcement, police, military, or prosecutorial agency;
(2) Seek, consider, use, or take an adverse action based on information about any referral to or participation in a pre-trial or post-trial diversion program or a deferred entry of judgment program; provided that if this information was provided by an individual for purposes of offering mitigating information, a person may consider and use such information;
(3) Seek, consider, use, or take an adverse action based on information about any infraction, or any criminal conviction that has been sealed, dismissed, vacated, expunged, voided, invalidated, pardoned, or otherwise rendered inoperative by judicial action or by statute (for example, under California Penal Code sections 1203.1 or 1203.4); or for which a certificate of rehabilitation has been granted pursuant to Penal Code section 4852.01 et seq.; provided that if this information was provided by an individual for purposes of offering mitigating information, a person may consider and use such information;
(4) Unless pursuant to an applicable court order, seek, consider, use or take an adverse action based on any adjudication in the juvenile justice system, or information regarding a matter considered in or processed through the juvenile justice system; provided that if this information was provided by an individual for purposes of offering mitigating information, a person may consider and use such information; or
(5) Implement a "blanket ban" or categorical exclusion practice that takes adverse action against all individuals with a criminal record regardless of whether the criminal conviction is directly related to a demonstrable risk to the identified substantial, legitimate, nondiscriminatory interest or purpose. Examples of such prohibited practices include bans against all individuals with a criminal record, bans against all individuals with prior convictions, bans against all individuals with prior misdemeanors, and bans against all individuals with prior felonies.
(b) While laws regulating investigative consumer reports, such as California Civil Code section 1785.13(a)(6), allow the reporting of certain criminal history information up to seven years from the date of disposition, release or parole, a court may consider shorter look-back periods in its determination of whether there is a feasible alternative practice under subsection 12266. A look-back period limits the inquiry to criminal activity that occurred during a certain amount of time prior to the present. Look-back periods are intended to ensure that the criminal history information considered is relevant to the decision being made.
(c) Persons who obtain investigative consumer reports or criminal history information from third parties are also subject to the requirements of applicable federal and state law regarding such reports, such as the requirement under the Fair Credit Reporting Act to notify an individual if the person takes adverse action based partly or completely on the criminal history information obtained in a consumer report. Such laws include the Fair Credit Reporting Act ( 15 U.S.C. section 1681 et seq.), and the California Consumer Credit Reporting Agencies Act and the California Investigative Consumer Reporting Agencies Act (Civil Code, Div. 3, Part 4, Titles 1.6, 1.61, and 1.6a).

Notes

Cal. Code Regs. Tit. 2, § 12269

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12927, 12955 and 12955.8, Government Code.

1. New section filed 9-16-2019; operative 1-1-2020 (Register 2019, No. 38).

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