California Code of Regulations › Title 2 - Administration › Division 4.1 - Civil Rights Department › Chapter 5 - Civil Rights Council › Subchapter 2 - Discrimination in Employment › Article 2 - Particular Employment Practices › Section 11017.1 - Consideration of Criminal History in Employment Decisions

Current through Register 2024 Notice Reg. No. 28, July 12, 2024
(a) Prohibition of Consideration of Criminal
					 History Prior to a Conditional Offer of Employment. Except in the circumstances
					 addressed in subsection (a)(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.
(1)
					 Prohibited consideration under this subsection includes, but is not limited to,
					 inquiring about criminal history through an employment application, background
					 check, or internet searches.
(2)
					 Employers are prohibited from including statements in job advertisements,
					 postings, applications, or other materials that no persons with criminal
					 history will be considered for hire, such as "No Felons" or "Must Have Clean
					 Record."
(3) Employers who violate
					 the prohibition on inquiring into criminal history prior to making a
					 conditional offer of employment may not, after extending a conditional offer of
					 employment, use an applicant's failure to disclose criminal history prior to
					 the conditional offer as a factor in subsequent employment decisions, including
					 denial of the position conditionally offered.
(4) 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 subsections (b) and (d)-(g)):
(A) If the position is one for which an
					 employer is otherwise required by law to conduct a conviction history
					 background check where the employer is a state or local agency;
(B) If the position is with a criminal
					 justice agency, as defined in Section
					 13101 of the
					 Penal Code;
(C) If the position is
					 as a Farm Labor Contractor, as described in Section
					 1685 of the
					 Labor Code; or
(D) 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
					 Securities Exchange Act of 1934,
					 15 U.S.C. §
														78c(a)(26).
(5) For the exemptions set forth in
					 subsection (a)(4)(A) and (a)(4)(D) 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 requiring another entity, such as an occupational
					 licensing board, to conduct a criminal background check will not exempt an
					 employer from the prohibitions set forth in this subsection and other
					 requirements of this section.
(6)
					 If an applicant raises their criminal history voluntarily prior to receiving a
					 conditional offer, the employer must not consider any information the employer
					 is prohibited from considering under subsection (b). In addition, an employer
					 is prohibited from considering any other conviction history information until
					 after making a conditional offer of employment, unless subsection (a)(4)
					 applies.