Feb 14, 2024
California job seekers received a significant boost in rights in October. This boost is due to the new regulations introduced by the California Civil Rights Council. According to the Council, they have modified the state’s Fair Employment and Housing Act (FEHA).
This law governs the employer’s ability to perform background checks on prospective employees. The Council explained how the new regulations significantly expanded the protections available for job applicants under FEHA. However, these expansions have already taken effect. As such, jobseekers should know what new rights they now possess.
What is FEHA?
FEHA is an Act that provides protections in employment and housing. It protects employees and applicants from harassment or discrimination based on the following attributes:
- “Age” (40 and over)
- Ancestry,
- Color,
- Creed,
- Denial of family and medical care leave,
- Disabilities (mental and physical), including HIV and AIDS,
- Marital status,
- Medical condition (cancer and genetic characteristics),
- National origin,
- Race,
- Religion,
- Sex, and
- Sexual orientation.”
FEHA bars employers from running a criminal history search before issuing an applicant a conditional offer of employment. After this background check, the employer may decide the applicant’s criminal history disqualifies them from the job. Employers considering rescinding the job offer must first perform an individualized assessment.
Employers must prove that an applicant’s criminal history would directly and adversely impact their ability to perform the position’s specific duties. This assessment requires the employer to 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.
FEHA also poses several subsequent requirements to ensure fairness during the process. For example, employers must provide notice and time to respond. The new expansions leave these requirements in place while adding more protections.
Expanded Protections
Excluding a few exceptions, the newly expanded FEHA will change how employers list open positions. For example, job postings cannot state that the employer will not consider anyone with a criminal history. The regulations also prevent employers from searching for an applicant’s criminal history.
As such, they cannot run Internet searches for information on applicants. FEHA also prohibits employers from considering criminal history before making a conditional employment offer. Such considerations include voluntarily shared information by the applicant. The extended FEHA regulations also updated the individualized assessment process.
It now requires employers to consider evidence of rehabilitation or mitigating circumstances provided by the applicant. Furthermore, potential employers must allow the applicant at least five business days to respond. This timeline begins on the day the applicant receives the adverse action notice. Should the applicant request more time, the employer must allow at least five additional business days.
Employers must then consider any evidence of mitigating circumstances or rehabilitation that a jobseeker provides in order to make a final decision. Evidence can include participation in work or educational training programs during incarceration, community service after a conviction, or employment since the completion of a sentence.
FEHA prohibits employers from refusing any additional evidence. However, they also cannot require applicants to provide further proof. Finally, employers cannot request specific documentary evidence. This FEHA expansion offers job seekers greater protections during the screening process. However, they do not bar employers from performing background checks.
When applying for a position, consider preparing for what the employer may see on your background check. One way to prepare is by running a self-background check. Running a self-check allows you to see what a prospective employer will see, make corrections, and prepare you for background-related questions.
Background checks don’t have to be complicated. Try running a self background check today and give yourself a head start.