Although California’s Fair Employment and Housing Act (FEHA) put restrictions into place for a covered employer’s ability to make hiring decisions based on an individual’s criminal history, a new Fair Chance Act FAQ document, effective Oct. 1, 2020, is bringing renewed and substantial attention to how employers use criminal records in hiring and personnel decisions. Specifically, FEHA makes it unlawful for covered California employers with at least five employees to: include on any application for employment any question that seeks the disclosure of an applicant’s conviction history; inquire into or consider the conviction history of an applicant before the applicant receives a conditional offer of employment; and consider, distribute, or disseminate information about specific situations when conducting a criminal history background check in connection with any application for employment. Updates to the regulations state that an “applicant” now includes individuals who begin work before, but are still subject to, the employer’s review of their criminal history and also clarify the obligations the FEHA imposes on employers that are required by law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history.
