California Pre-Employment Background Check Regulations to be Amended

Following the close of the 15-day public comment period on December 30, 2022, the California Civil Right Council is expected to adopt as final its proposed changes to regulations concerning the use of a person’s conviction history as a reason to deny employment. According to the Council’s “Initial Statement of Reasons” for making the changes, no new regulations are being imposed on employers. Rather, the changes are expected to make clearer and more concise the employer's compliance obligations and restrictions of the regulations concerning the implementation of Government Code §12952, which became effective on January 1, 2019.

This section of the Government Code addresses discrimination in employment, particularly with regard to preemployment screening relative to an individual’s history of criminal convictions. The law applies specifically to employers with five or more employees, but this does not mean smaller employers are entirely immune from the requirements. Churches with five or more employees have been slow to understand and apply these requirements. Smaller churches are cautioned to take the “high ground” and apply the regulations to their employment practices as if they had more employees.

Churches have historically and routinely used criminal background checks as a tool in the hiring process of pastors and other employees. There is no legal requirement to do so, and churches with five or more employees are cautioned that failure to comply carries the potential to be sued by a job applicant who is denied employment or a promotion as a result of a background check. California and federal laws also apply to the multiple written disclosures that must be given to a person prior to his or her voluntary consent to a background check, whether limited to a person’s credit history or a more expansive check of personal habits, lifestyle, and criminal history.

Beginning in 2019, pre-employment background checks not otherwise required by law were prohibited unless preceded by a “conditional offer of employment.” That law limited the reach of criminal background checks to reporting only those convictions in the seven years immediately prior to the application for employment. Following receipt of the background information, a conditional offer of employment cannot be summarily revoked, and the employer must make an “individual assessment” of the weight of the information as it relates to the applicant’s employability. If, after making the assessment, the employer intends to take an adverse position and deny employment, the applicant must be advised of his or her right to present mitigating evidence and the employer cannot refuse to accept such evidence for additional evaluation.

During the application and interviewing processes, it is impermissible to ask questions concerning a person’s criminal past. This was all part of the "Ban the Box" effort several years ago. And even if an applicant for employment voluntarily discloses a prior history of criminal conviction, a covered employer cannot simply deny employment to an otherwise capable person. The law provides a clear set of steps an employer must take even in the face of a voluntary admission. Certain information that may have been revealed at an interview, but which might not have been obtained following a background check, cannot be the sole basis to deny employment.

If a background check reveals information adverse to an applicant or employee, the employer is required to provide specific information concerning the applicant's right to appeal the employer's pending action. Additionally, if an applicant was actually hired "pending" the outcome of the background check, that employee cannot be terminated until all of his or her administrative appeals have been exhausted. An employer that unlawfully terminates such an employee can be sued by the state or the affected individual.

The new amendments to the regulations are supposed to make compliance easier to understand and administer. A date for implementation has not been established, and the next meeting of the Civil Rights Council is not yet calendared. An analysis of the changes has been authored by the law firm of Littler Mendelsohn and is available for download, together with the Council’s “Initial Statement of Reasons” for the various changes, and a collection of forms for employers to use in compliance with Government Code §12952. Simply click the DOWNLOAD button below.