The California Office of Administrative Law recently approved the Civil Rights Council’s amendments to regulations in the Fair Employment and Housing Act (“FEHA”) that govern employer inquiries into and consideration of a job applicant’s criminal history. The revised regulations take effect on Oct. 1, 2023.

For the most part, the revised regulations (located at California Code of Regulations Title 2, Section 11017.1) do not fundamentally change the rules regarding the use of criminal history, but instead seek to clarify employers’ obligations when using criminal history by adding more context and examples to the existing rules. However, a handful of additional requirements were included by the Civil Rights Council (“the Council”).

This article provides a summary of modifications to C.C.R. § 11017.1 of which employers should be aware.

Consideration of Criminal History Prior to a Conditional Offer of Employment

Under existing law, prior to making a conditional job offer, an employer is prohibited from inquiring about criminal history unless required to do so by law.

The revised regulations clarify the following:

• In addition to not being able to inquire about criminal history through job applications, background checks, or internet searches, employers cannot put statements in job advertisements, postings, applications or other materials that persons with criminal history will not be considered for hire, such as “No Felons” or “Must Have Clean Record.”

• Only if an employer...

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