Consideration of an Applicant’s Criminal History Banned in California

California’s Office of Administrative Law recently approved revisions to the Fair Employment and Housing Act’s regulations governing an employer’s use and consideration of a job applicant’s criminal history in making employment decisions. The changes go into effect on October 1, 2023.

Prohibited consideration under the revised regulations includes, but is not limited to, inquiring about criminal history through an employment application, background check, or internet searches. Employers are prohibited from including statements in job advertisements, postings, applications, or other materials that no persons with criminal history will be considered for hire, such as “No Felons” or “Must Have Clean Record.”

Note that the prohibition against inquiring about or using any criminal history before a conditional offer of employment has been made does not apply in the following circumstances:

  • If the position is one for which a state or local agency is otherwise required by law to conduct a conviction history background check; 
  • If the position is with a criminal justice agency, as defined in Section 13101 of the Penal Code; 
  • If the position is as a Farm Labor Contractor, as described in Section 1685 of the Labor Code; or 
  • If the position is one that an employer or an employer’s agent is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history. Federal law includes rules or regulations promulgated by a self-regulatory organization as defined in Section 3(a)(26) of the Securities Exchange Act of 1934, 15 U.S.C. § 78c(a)(26).

For more information on the revised regulations, click here.