On October 1, 2023, changes to the Fair Employment and Housing Act (FEHA) regulations that govern how employers can use information about criminal history in employment decisions go into effect, modifying California Code of Regulations Title 2, Section 11017.1. These revised regulations add to the already long list of procedures that must be followed when a California employer is going to use criminal history as a basis for rejecting an applicant or taking other adverse actions against an applicant or employee. It will be very easy for employers to slip up here if they are not careful.

California employers should be aware of the key provisions of the regulations (some of which are new and will be effective October 1, and some of which are already applicable). Employers with employees in California should ensure that HR and recruiting personnel are properly trained on these procedures, which are highlighted here:

• Employers and other covered entities (“employers” for ease of reference) are prohibited from inquiring into (including through job applications, background checks, or internet searches), considering, or disseminating information about an applicant’s criminal history until after the employer makes a conditional offer of employment. A law that requires an entity other than the employer (such as an occupational licensing board) to conduct a criminal background check does not exempt the employer from these regulations.
  • There are certain exceptions to this...

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