New California Regulations Limit Employers’ Use of Criminal Background Checks

California employers must comply with new regulations on employer consideration of applicants’ and employees’ criminal background.1 The regulations, which were effective as of July 1, 2017, borrow heavily from guidance by the federal Equal Employment Opportunity Commission (“EEOC”) in its April 2012 “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964,” (“Guidance”).2 Both the regulations and the Guidance reflect efforts to reduce employment application rejections due to a criminal record, which are believed to have a detrimental effect on not only the individuals involved but also society as a whole in the form of unemployment and recidivism.3

Key Aspects of the New Regulations

The new regulations:

Limit the Types of Criminal Convictions Employers May Consider

Employers are now prohibited from considering any non-felony convictions for marijuana possession if the conviction is more than two years old. (Before the regulations were enacted, California law already prohibited asking applicants to provide information concerning convictions for marijuana-related offenses that are more than two years old; any detentions or arrests not resulting in conviction (except for those pending); any convictions that have been judicially dismissed or ordered sealed; and/or any referral to or participation in a work/education program as part of probation.) FULL ARTICLE

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