California’s Civil Rights Council has issued draft revisions to FEHA regulations governing an employer’s use and consideration of a job applicant’s criminal history in making employment decisions. In light of these expected changes, California employers that use criminal records to vet candidates should consider a privileged review of their policies, procedures, and other documents related to the screening process.

Employers that rely on criminal background checks to vet candidates know all too well that they must comply with a legion of statutes, ordinances, and regulations. On December 15, 2022, the Civil Rights Council (“Council”) of the California Civil Rights Department (“Department”) released its latest draft revisions to the Fair Employment and Housing Act (FEHA) regulations that govern employers’ use and consideration of criminal history in employment decisions under Cal. Code Regs. Tit. 2, § 11017.1. These changes were made in response to written comments on earlier proposed regulations received during a 45-day public comment period that ended August 10, 2022.¹ The following summarizes the primary changes in the latest round of proposed modification to the FEHA regulations regarding criminal history. As it stands, the changes are likely to be adopted in full.

Introduction to Regulations²

In a proposed introductory section to the regulations, the Council seeks to clarify that “with limited exceptions,” employers have no legal obligation to check the criminal...

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