As a valued Sierra HR client, we want to be sure you are aware of the October 2023 amendments to the Fair Employment and Housing Act (FEHA) regulations, and how these changes impact an employers’ utilization of information about criminal history in employment decisions. These changes, as outlined in California Code of Regulations Title 2, Section 11017.1, introduced additional procedures that should be carefully followed by California employers when considering criminal history in decisions related to job applicants, or existing employees.
One specific area of concern is the need to complete an Individual Assessment, before an employer decides to deny an applicant the employment position he/she was conditionally offered, based on conviction history.
The employer should consider any evidence of mitigating circumstances submitted by the applicant, including:
- The personal conduct of the applicant
- Whether there was harm to property or people
- Degree of harm
- Permanence of harm
- Context of the offense
- Whether a disability (including substance impairment) contributed
- Whether the likelihood of harm could be eliminated by reasonable accommodation
- Whether the disability has been eliminated
- Whether trauma, domestic abuse, stalking, or similar factors contributed to the conduct
- The age of the applicant
- The time that passed since incarceration
- Specific job duties
- Whether the context resulting in conviction is likely to arise in the workplace
- Whether the type of harm is likely to occur in the workplace.
Additionally, final decisions to rescind an offer should be communicated in writing, including information on available procedures to challenge the decision and the right to file a complaint with the California Civil Rights Department.
Sounds complicated, right?
Our role at Sierra HR Partners is to guide you through this process. To simplify matters, we have created an Individualized Assessment form. This form is designed to provide you with a step-by-step guide in complying with new California legislation when deciding to withdraw a job offer based on background check findings.
Contact Sierra HR Partners for a copy of our Individualized Assessment Form or to learn more about our Background Investigations.
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