New California Employment Protections Take Effect for Marijuana Users

California is starting 2024 with new employment protections taking effect for marijuana users. Though they took effect on January 1 of this year, they stem from two laws passed in 2023. These new protections closely resemble similar legislation that recently took effect in Washington.

The new employment protections will bar California employers from discriminating against marijuana users. In most cases, California employers cannot discriminate against workers who test positive for cannabis. Separate legislation also bars employers from inquiring into an employee or job applicant’s off-duty use of cannabis. Combined, these new laws create some of the strongest employment protections for marijuana users in the country. As such, employers must understand how these laws affect hiring processes and drug testing.

Amending the Fair Employment and Housing Act

Under the first new law, AB 2188, the state has amended the Fair Employment and Housing Act (FEHA). The FEHA now protects employees from discrimination based on their cannabis usage. Specifically, the law prohibits employers from refusing to hire, penalizing, firing, or otherwise taking adverse action based on off-duty marijuana use. The law specifically prohibits employers from using the results of hair or urine tests, which risk false positives. This decision prevents adverse employment-related decisions based on usage that happened days or weeks before the positive drug test.

Sealing a Loophole

The second law, SB 700, amended the FEHA to seal what many saw as a loophole in the former bill. By removing this loophole, SB 700 made it unlawful for employers to inquire into a job applicant’s past use of cannabis. Employers must understand that this ban also includes questions about criminal history concerning marijuana. 

Existing state laws already protect job applicants from discrimination based on prior use of alcohol and other legal substances. As such, SB 700 acts as an extension to the employment protections for marijuana users. Included with the extensions and amendments, AB 2188 and SB 700 created exemptions to the FEHA for eligible employment circumstances.

Qualifying employers include those in the building and construction industry. The new FEHA exemptions also include employment in positions requiring federal background screening or clearances. The laws also do not preempt existing state and federal laws applicable to companies receiving federal contracts, funds, or benefits.

These new employment protection laws began at the start of January 2024. As such, employers who have not reviewed their hiring and employment policies concerning marijuana should start soon. Working with a trustworthy employment screening provider is one way to get started. The right partner will deliver accurate, compliant, timely reports for employers to make informed decisions.

Discover the benefits of JDP’s seamless background checks for your business. Contact a sales rep today.

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The California Privacy Protection Agency (CPPA) recently revealed a draft of new regulations. This draft cites new protections for consumers, applicants, and employees. These proposed rules would regulate how businesses use automated decision-making technology.

According to the proposal, employers must provide a pre-use notice to applicants and employees applying for a job. It must supply access information concerning the employer’s use of automated decision-making technology. It should also include the applicant’s or employee’s right to opt out. 

The Draft

In some situations, the rules would require businesses to conduct risk assessments. The company must also provide an easy method to learn more about the company’s automated decision-making technology. The draft explains that companies must include the following information:

• “The logic used in the automated decision-making technology, including the key parameters that affect the output of the automated decision-making technology. The business shall explain why these parameters are key;
• The intended output of the automated decision-making technology (e.g., a numerical score of compatibility);
• How the business plans to use the output to make a decision, including the role of any human involvement and 
• Whether the business’s use of the automated technology has been evaluated for validity, reliability, and fairness, and the outcome of any such evaluation.”

The regulations require businesses to allow applicants and employees to opt out. However, this requirement applies if the employer would use the automated tool “For a decision that produces legal or similarly significant effects concerning a consumer.” The draft also provided exceptions to the new regulations. Such exceptions include:

• “To prevent, detect, and investigate security incidents that compromise the availability, authenticity, integrity, or confidentiality of stored or transmitted personal information;
• To resist malicious, deceptive, fraudulent, or illegal actions directed at the business and to prosecute those responsible for those actions;
• To protect the life and physical safety of consumers; or
• To provide the good or perform the service requested explicitly by the consumer,” and there is no other reasonable way to provide the service. (There is a rebuttable presumption that an appropriate alternative delivery method exists.)

Those Covered

The regulations would also cover several employee-facing technologies. These include productivity monitors, face or speech detection or recognition, and location trackers. Other examples include keystroke loggers, social media monitoring tools, and video or audio recording.

Other regulations would require businesses to provide consumers two or more methods to submit opt-out requests. They must also define the primary means of communication between the company and customers. The company must explain that consumers can use the automated tools in this communication. 

As such, it must be clear that the consumers may opt out of all use of the tools. Businesses that receive an opt-out request must comply immediately. They may ask the consumer about using the automated tools after 12 months of receiving the opt-out request.

The changes are still a draft, meaning the details still require finalizing. As such, employers have time to evaluate and revise their hiring policies. One way to ensure future and current compliance is by working with a trustworthy background screening company. The right partner will use their experience to ensure your company complies with all relevant regulations.

Keep your business up to date on new laws and regulations with JDP’s free news resources. Keep your business compliant with new laws and regulations with Pre-employ’s reliable background checks. Contact a sales rep today.

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The California Civil Rights Council recently issued new regulations that modify California’s Fair Employment and Housing Act (FEHA). The FEHA regulates when and how employers may perform background checks on job applicants. With the new regulations already in effect, employers should review their hiring policies for immediate compliance.

What is FEHA?

The FEHA provides Californians protection for housing and employment. It protects job applicants and employees from discrimination based on race, national origin, ancestry, marital status, color, religion, or age if over 40. It also prevents bias based on sexual orientation, sex, disability, medical condition, or creed, and family and medical care leave denial. 

The Act also bans employers from conducting a criminal background check unless they have made a conditional offer of employment. After running a background check, an employer may decide against hiring an applicant based on the background screening results. However, they must conduct an individualized background check before taking adverse action.

During this assessment, the employer must consider the following:

• The nature and gravity of the offense or conduct;
• The time that has passed since the offense or conduct and/or completion of the sentence and
• The nature of the job held or sought.

An employer may still decide that an applicant’s criminal history disqualifies them from the job after the assessment. As such, the employer must give the applicant the required notice. The employer must also provide the applicant enough time to respond.

New Protections

The new regulations have added protections to the FEHA; employers must comply with the latest and previous rules. One added law prohibits employers from stating in job descriptions that they will not consider anyone with a criminal background. However, the new additions include a few exceptions to the regulation.

For example, jobs required by law to perform a criminal background check are exempt from these protections. Criminal justice agencies and others that require screening also benefit from the exemptions. Another regulation bans employers from trying to find an applicant’s criminal history via an internet search. It also prevents employers from considering an applicant’s criminal history even when the applicant voluntarily provides the information.

When performing the individualized assessment, applicants may provide evidence of rehabilitation or mitigating circumstances. Employers must consider this information when applicants present it. As such, employers cannot refuse any evidence or mitigating circumstances provided by the applicant. Employers must also give applicants a minimum of five days to respond to an adverse notice and an additional five days if the applicants request more time.

The new regulations will benefit many California residents and employers by expanding the labor pool. Employers should review their hiring policies to ensure they comply with FEHA regulations. One way to ensure compliance is by partnering with a trustworthy background check company.

Keep your business compliant with new laws and regulations with JDP’s reliable background checks. Contact a sales rep today.

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California residents will soon see a significant expansion to their privacy protections. Though California already has the California Consumer Privacy Act (CCPA) listing various resident protections, lawmakers understood that they needed to improve the CCPA. Recently, the governor signed bills to strengthen these protections. 

These include Assembly Bills 1194 and 947. These laws will provide additional safeguards for sensitive information, such as an individual’s immigration or citizenship status. They also protect an individual’s reproductive health care services. 

Another bill signed into law includes Senate Bill 362, the Delete Act. This Act gives California residents more control over personal information collected by data brokers. Together, these laws should increase the privacy of California residents. 

Here are some highlights about each law:

AB 1194

This new law is an amendment to the CCPA. It would exclude various information from the CCPA’s exemptions to non-disclosure requirements. Primarily, AB 1194 excludes information concerning abortion and other reproductive care services. 

Examples of such care include perinatal, contraception, and pregnancy. Businesses that process personal information related to the above must comply with the CCPA. As such, exemptions previously applied to these subjects will no longer apply due to AB 1194.

AB 947

AB 947 expands the definition of sensitive personal information. For example, an individual’s citizenship or immigration status legally counts as sensitive personal information. As a result, AB 947 will restrict how or whether employers may use this information under the CCPA.

However, this does not guarantee absolute protection of an individual’s citizenship or immigration status. Some exceptions to AB947 apply, making this information available under specific circumstances. One exception includes information publicly available or lawfully obtained. Should this information prove a matter of public concern, it will not qualify as sensitive personal information.

SB 362

The Delete Act will permit California residents to delete personal information that California’s registered data brokers have collected about them. Interested parties must submit a deletion request, which they can do on the California Privacy Protection Agency’s website. The agency will not charge consumers for this service. However, it can charge brokers a fee to access the deletion process.

Covered data brokers must delete all their personal information about a consumer after that consumer has submitted a request. The Delete Act requires them to delete this information once every 45 days. Furthermore, they cannot share or sell new information they collect about the residents.

Starting in 2028, the Delete Act will require data brokers to undergo compliance audits. An independent third party will perform these audits to ensure unbiased results. In addition, the Delete Act will have data brokers undergo these audits every three years.

Conclusion

These new laws will significantly impact employers and their policies and procedures. As such, employers should review and revise their policies to ensure compliance with the CCPA and its amendments. One area of particular concern for employers is employment background checks. The best way to help ensure compliance is by working with a trusted and experienced employment screening provider.

Keep your business compliant with new laws and regulations with JDP’s reliable background checks. Contact a sales rep today.

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As of October 1, 2023, California has implemented regulations concerning applicants’ and employees’ criminal background checks. According to the changes, employers must perform a more comprehensive analysis when conducting background checks. 

Introduced Factors

The process also introduced more evaluation factors for employers to consider before making an adverse employment decision. Employers must now include the following in their evaluation:

• “The nature and gravity of the offense or conduct; consideration of this factor may include but is not limited to: 
  • The specific personal conduct of the applicant that resulted in the conviction; 
  • Whether the harm was to property or people; 
  • The degree of the harm (e.g., amount of loss in theft); 
  • The permanence of the harm; 
  • The context in which the offense occurred; 
  • Whether a disability, including but not limited to a past drug addiction or mental impairment, contributed to the offense or conduct, and if so, whether the likelihood of harm arising from similar conduct could be sufficiently mitigated or eliminated by a reasonable accommodation, or whether the disability has been mitigated or eliminated by treatment or otherwise;
  • Whether trauma, domestic or dating violence, sexual assault, stalking, human trafficking, duress, or other similar factors contributed to the offense or conduct; and/or 
  • The age of the applicant when the conduct occurred.
• The time that has passed since the offense or conduct and/or completion of the sentence; consideration of this factor may include but is not limited to:
  • The amount of time that has passed since the conduct underlying the conviction, which may significantly predate the conviction itself; and/or 
  • When the conviction led to incarceration, the amount of time that has passed since the applicant’s release from incarceration;
• The nature of the job held or sought. Consideration of this factor may include but is not limited to: 
  • The specific duties of the job; 
  • Whether the context in which the conviction occurred is likely to arise in the workplace; and/or 
  • Whether the type or degree of harm that resulted from the conviction is likely to occur in the workplace.”

Further Changes

This law also changed the definition to “employer.” According to the changes, joint employers now qualify under California’s Fair Chance Act. These entities include businesses evaluating applicants’ criminal history for employers or as the employer’s agent. Other affected entities include staffing agencies and those that select, obtain, or provide workers from a pool or availability list. As such, California’s Fair Chance Act will apply to more businesses. 

These are not the only changes to California’s updated background check regulations. For example, employers must not advertise that they will not consider someone with a criminal background. This ban includes general advertisements, postings on job boards, or applications.

Furthermore, employers cannot consider an applicant’s criminal history before making a conditional job offer. This ban applies even when applicants voluntarily offer information. Violating the Act may end in severe penalties.

Such penalties include back pay, front pay, promotion, hiring or reinstatement, out-of-pocket expenses, and training. Failing to comply with the California Fair Chance Act and other employment laws can be very costly. The best way to comply with this and other employment laws is to partner with an experienced background check company.

Keep your business compliant with new laws and regulations with JDP’s reliable background checks. Contact a sales rep today.

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Employers in California must prepare for changes to the Fair Chance Act. The Fair Chance Act prohibits employers from asking about an applicant’s criminal background before offering employment contingent on the screening results. It also requires employers to conduct individualized job-related assessments before rejecting applicants due to criminal history. Should employers reject an applicant due to the background, they must follow a process similar to the Fair Credit Reporting Act (FCRA).

Beyond these requirements, the California Office of Administrative Law has approved changes to the Fair Chance Act regulations. According to the Office, the California Civil Rights Council proposed these amendments, which will take effect on October 1, 2023. It will affect employers with five or more employees. These changes could impact how employers use criminal history when making hiring or other employment decisions.

Mentioned Changes

One change to the Fair Chance Act requires employers to notify applicants of preliminary decisions in writing. For example, when the employer feels an applicant’s criminal history could disqualify them from a position. This written notice must detail the disqualifying conviction and include a copy of the report used to make the decision.

The notice must also include the “applicant’s right to respond to the notice before the preliminary decision rescinding the offer of employment becomes final.” Furthermore, it must explain that “the response may include submission of either or both of the following types of evidence: evidence challenging the accuracy of the conviction history report that is the basis for the preliminary decision to rescind the offer or evidence of rehabilitation or mitigating circumstances.”

Other modifications concern the individualized assessment. These would clarify the list of factors employers may consider during the evaluation. Additionally, they describe what evidence can demonstrate mitigating circumstances or rehabilitation. Providing this evidence is optional, and applicants may personally present it or request a third party to deliver it.

Amendment Examples

In addition, the amendments ban employers from taking several actions. Examples include, but are not limited to, the following:

• Refusing to accept additional evidence voluntarily provided by an applicant or by another party at the applicant’s request at any stage of the hiring process (including before making a preliminary decision to rescind the applicant’s job offer); 
• Requiring an applicant to submit additional evidence described in this subsection at any time in the hiring process;
• Requiring an applicant to provide a specific type of documentary evidence (e.g., a police report as evidence of domestic or dating violence) or disqualifying an applicant from the employment conditionally offered for failing to provide specific documents or other evidence;
• Requiring an applicant to disclose their status as a survivor of domestic or dating violence, sexual assault, stalking, or comparable statuses, and/or 
• Requiring an applicant to produce medical records and/or disclose the existence of a disability or diagnosis. 

Another change to the Fair Chance Act addresses the reassessment process. Employers must perform reassessments when deciding whether they will continue revoking a conditionally offered job due to an applicant’s criminal history. More information is available in the amended bill, which is currently on a suspense file. Finally, the modified Fair Chance Act would apply to labor contractors, client employers, and union hiring halls.

California employers must prepare to comply with the modified Fair Chance Act by October 1, 2023. The best way for employers to keep up with frequently changing employment laws is to partner with an experienced background check company.

Keep your business compliant with new laws and regulations with JDP’s reliable background checks. Contact a sales rep today

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The Civil Rights Council proposed an amendment to California’s employment regulations concerning criminal history. As of July 24, California’s Office of Administrative Law accepted this amendment. 

The primary change of this amendment alters the regulations concerning how employers may screen applicants’ criminal histories. By altering the relevant definition of “employer,” these regulations may cover background check agencies working on behalf of employers. Affected parties can expect this to take effect on October 1, 2023. 

These regulations first took effect in 2017 to limit how employers can consider criminal history when making employment decisions. Employers cannot attempt “inquiring into, considering, distributing, or disseminating” an applicant’s criminal history before making a conditional offer of employment. 

Moreover, they cannot seek information about specific types of criminal records at any point in the individual’s career. The regulations provide that employers must complete an individual assessment before they can rescind an employment offer due to discovering a candidate’s conviction history. In addition, the employer must provide a notice explaining the reason to affected applicants.

This new amendment does not enact significant changes, instead fleshing out the existing ones. For example, the amendment adds a new definition under the definitions provided for ” employer.” It also expanded the regulations to affect “any entity that evaluates the application’s conviction history on behalf of an employer or acts as an agent of an employer, directly or indirectly.” Some experts could construe that definition includes agencies performing background screening checks on candidates for employers. 

This interpretation already emerged during the amendment’s notice and comment period. One comment surfaced the possibility of expanding the definition of “employer” so the regulations would affect “a third party like a background check company… where it exerts control over access to the job market or employment opportunities, and its discriminatory conduct interferes with an applicant’s access to the same, and where it acts as an agent of the direct employer.” The Civil Rights Council agreed with the comment, implementing a similar definition.

Background screening companies working with affected California employers must act cautiously if this interpretation proves accurate. Agencies must make a conditional offer of employment before delving into an individual’s conviction history as part of a report. 

In addition, they should refrain from inquiring into some records, even if they do not appear in a completed report. To abide by the Civil Rights Council’s amendment and all applicable regulations, employers and background screening agencies should ensure they comply with the strictest interpretation of California law.

Keep your business up to date on new laws and regulations with JDP’s free news resources. Contact a sales rep today.

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