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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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The Office of Personnel Management (OPM) has approved final regulations affecting federal agencies and contractors. As of this approval, federal agencies and contractors can no longer ask job applicants about their criminal history before making a conditional job offer. Though many agencies already had policies reflecting this requirement, the OPM mandating it can improve job opportunities for many.

Initial Attempt

The OPM initially proposed the policy in 2022 to address some applicants’ struggles due to criminal backgrounds. However, it originally appeared in the 2020 National Defense Authorization Act, which expanded the OPM’s “ban-the-box” policy from 2016. These final regulations offer greater detail about implementing the Fair Chance Act.

What It Does Now

According to the final regulations, “Unless otherwise required by law, an employee of an agency may not request, in oral or written form (including through the Declaration for Federal Employment (OF 306) or any similar successor form, the USAJOBS internet website, or any other electronic means) that an applicant for an appointment to a position in the civil service disclose criminal history record information regarding the applicant before the appointing authority extends a conditional offer to the applicant.”  

As such, previously incarcerated individuals have improved chances of acquiring work in federal agencies or contracts. This change puts them on equal footing with other applicants, allowing fair and equal opportunities for everyone. Furthermore, the final regulations adhere to President Joe Biden’s 2021 executive order, which allowed the OPM to evaluate and improve hiring opportunities. This order specified the need to expand on diversity, equity, inclusion, and accessibility for federal hiring.

Exempt Circumstances

However, the final regulations include exceptions for several positions. The OPM provided examples of exempt positions, including those accessing classified information, interacting with minors, and accepting or retaining in the military. 

The Fair Chance Act also included a process for applicants who feel the employer has violated their rights. It also details the steps employers must take when considering adverse action based on an applicant’s criminal history. Violating the Fair Chance Act could include written warnings, civil penalties, and suspension without pay.

Unfortunately, the effect of current “ban-the-box” laws on hiring remains unclear. However, the OPM intends to implement a strategy for collecting data to verify the trends’ impact. Until then, the Office expects these final regulations to improve employment opportunities for anyone with a criminal background.

Interested individuals should consider a self-background check before applying for a federal job. A self-check allows you to correct any errors before potential employers see them. It also helps you prepare to explain any negative information that could cause delays in the hiring process.

Background checks don’t have to be complicated. Try running a self background check today and give yourself a head start.

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