Criminal History Regulations

Effective July 1, 2017, California’s new criminal history regulations went into effect. These regulations apply to all employment decisions, including hiring, promotions, discipline, and terminations.

Generally, employers are prohibited from asking job applicants to disclose the following information:

  • Arrests or detentions that did not result in a conviction

  • Convictions for most marijuana possession offenses more than two years old

  • Juvenile criminal history information

But what do the new regulations include? In addition to existing requirements, the new regulations require employers to notify individuals who are screened out because of criminal history. Employers must then give the screened out applicants an opportunity to provide information explaining why they should not be excluded.

In addition, California employers cannot use criminal history information in employment decisions if doing so would have an “adverse impact” on a protected class. An adverse impact includes a negative impact on protected classes such as race, national origin, and gender. Employers are permitted to use criminal history information in employment decisions only if they can show that the information is job-related and consistent with business necessity. An applicant could easily use statistics that demonstrate a correlation between disparities in the conviction rates of persons of color and adverse employment decisions.