The California Civil Rights Department (CRD) recently released its proposed modifications to the regulations in the Fair Employment and Housing Act (FEHA). These modifications concern the use of criminal history information when making employment decisions. Unfortunately, this process has proven complicated. This complication comes from the privacy laws in the California Consumer Privacy Act (CCPT), local “ban the box” ordinances, and the Investigative Consumer Reporting Agencies Act that also regulates this area of employment.

Fortunately, the proposed modifications clarify the current obligations. However, they also add some additional requirements. Here are some of the proposed changes:

• In most cases, employers would not have a legal obligation to check an applicant’s or current employee’s criminal history. If they review the applicant’s or employee’s criminal history, they must follow the requirements in the regulations.
• The proposed changes also make it more apparent what an employer or employer’s agent can do when required by law to conduct a criminal background check. The changes also detail the exemption for inquiring or using information concerning an individual’s criminal history before making a conditional offer of employment. The new regulations make it clear that state, federal, or local laws that require other entities to conduct a criminal background check do not exempt them from the ban.
• The new regulations would also supplement the requirements for the...

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