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CA Amended FEHA Employment Regulations Regarding Criminal History

Recently the California Civil Rights Council amended the Fair Employment and Housing Act (FEHA) employment regulations as it pertains to criminal history. This section of the regulations was amended to be more in line with the current California Fair Chance Act (BTB+ law). The effective date of the amended regulations is October 1, 2023.

According to the amended regulations, employers are still prohibited from inquiring into information related to the criminal history of applicants until after making a conditional offer of employment. This includes but is not limited to inquiring about criminal history information through an employment application, internet search or a consumer background report.

There are a few exemptions found in the regulations, however in order for the exemption to apply, the employer or the employer’s agent must be required by law to conduct the criminal background check. A state, federal or local law that requires another entity, such as an occupational licensing board, to conduct the background check, will not exempt the employer from the prohibitions found in the regulations as well as the other requirements.

Employers are still prohibited from considering certain types of criminal history, as under the current California Fair Chance Act; and employers must still perform an individualized assessment and provide specific information to the applicant during the adverse action process; however, the amended regulations provide greater details and examples regarding this process.

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