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 Dec. 15, 2022, the Civil Rights Council of the California Civil Rights 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.

The following summarizes the primary changes in the latest round of proposed modifications to the FEHA regulations regarding criminal history. As it stands, the changes are likely to be adopted in full.

The council seeks to clarify that, with limited exceptions, employers have no legal obligation to check the criminal histories of applicants or current employees. If employers choose to do so, they must abide by the legal limitations set forth in the regulations. Individuals with claims under the Fair Chance Act may file a complaint for the department to investigate or may obtain an immediate right-to-sue notice.

Only when an employer is required by law to conduct criminal background checks can any of the exceptions to the prohibition against inquiring about or using criminal history apply. If a state, federal, or local law requires another entity (such as an occupational licensing board) to conduct a criminal background check, that will not suffice to exempt the employer from the prohibitions in the law.

If an applicant volunteers information...

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