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California’s New Guidance Highlights Potential Change Affecting Hiring and Criminal Records


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November 12, 2020 Return to News & Events

California’s New Guidance Highlights Potential Change Affecting Hiring and Criminal Records

Recently California’s Department of Fair Employment and Housing (DFEH) issued a new guidance clarifying the states Fair Chance Act, as well as indicating a willingness to enforce updated policy. Adam Almeida, President and CEO of CriminalBackgroundRecords.com, opines: “The action in California that highlights the potential of significant change to laws governing the use of Criminal History Records, and Hiring Managers and HR Departments across the country should take immediate note. Laws governing pre-employment background screening face potential change and a best practice remains to work with a well-qualified third-party pre-employment background screening agency in order to remain compliant with existing and potential law.”

The new guidance issued by DFEH is designed to clarify protections for workers with a criminal background record.

From JDSupra.com on October 15, 2020:

Since its implementation on January 1, 2018, The Fair Chance Act has been a source of questions for California employers. Also referred to as “banning the box,” Government Code section 12952 makes it illegal for most employers in California to ask about the criminal record of job applicants before making a conditional job offer.

The Department of Fair Employment and Housing (“DFEH”) recently amended the regulations implementing the law, with an effective date of October 1, 2020 (1)

Almeida adds: “Modification and clarification guidance, such as the one issues in California by DFEH, can be common across the country thus creating an ongoing change to law. Hiring managers are challenged with remaining compliant with existing law.”

From Forbes.com on November 3, 2020 in discussing California’s new guidance:

California’s Fair Chance Act is one of more than three dozen ban the box measures that restrict a private employer’s inquiry in a candidate’s criminal history. The DFEH's new guidance reminds employers that they must comply with all applicable laws, including the notice and individualized assessment steps required by the Fair Chance Act, as well as the Act's restrictions on the consideration of specific criminal history. FAQs also clarify that employers must comply with the Act for individuals hired before their criminal background check is completed. Employers in Los Angeles and San Francisco must also comply with additional notice and assessment requirements beyond those promulgated by California's Fair Chance Act. (2)

Almeida concludes: “Knowing that change is a constant, especially in regards to the legal and lawful use of criminal history reports, a best practice remains for hiring managers and HR departments to work with a well-qualified third-party pre-employment background screening agency, such as CriminalBackgroundRecords.com, in order to remain compliant with law.”

CriminalBackgroundRecords.com is a third-party employment screening company, an advocate of SHRM, a member in good standing with the PBSA (Professional Background Screening Association) and for over 17 years has maintained an A+ Rating with the BBB (Better Business Bureau). The company has highly trained operators

well versed in the needs and requirements of companies and organizations large and small utilizing public records, such as criminal background records, as part of a hiring process. Assisting companies in maintaining full compliance under the law is a central tenet of all client relationships with CriminalBackgroundRecords.com.

Notes:

(1) jdsupra.com/legalnews/dfeh-updates-ban-the-box-regulations-16361/

(2) forbes.com/sites/alonzomartinez/2020/11/03/new-guidance-clarifies-protections-for-california-workers-with-criminal-records/?sh=89eaed76280f

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