California Modifies Regulation For Considering Criminal History In Employment Decisions

The California Civil Rights Department recently modified the regulation (2 CCR Section 11017.1) associated with California’s Fair Chance Act.  The regulation addresses an employer’s restrictions and obligations for considering an applicant or employee’s criminal history.  The modified regulation took effect on October 1, 2023.  Below, we highlight some of the key requirements that remain the same and some of the key requirements that have changed for private K-12 schools under the modified regulations.

What about private schools’ fingerprinting obligations?

The modified regulation does not affect the legal obligation of private K-12 schools to comply with the fingerprinting and criminal background check obligations of Education Code Section 44237, including as follows:

• Private K-12 schools must require each applicant for employment in a position requiring contact with minor pupils to submit two sets of fingerprints prepared for submittal to the Department of Justice for the purpose of obtaining criminal record summary information from the Department of Justice and the Federal Bureau of Investigation. (Ed. Code, Section 44237, (a).)
• Private K-12 schools remain prohibited from employing any applicant until the Department of Justice completes its check of the state criminal history file. (Ed. Code, Section 44237, (d).)
• Private K-12 schools remain prohibited from employing any person who has been convicted of a violent or serious felony or a person who would be prohibited from employment by a public school district because of his or her conviction for any crime. (Ed. Code, Section 44237, (e).)

How do the modified regulations apply to private schools?

The modified regulation is very important for private K-12 schools in two key circumstances:

1. When an applicant’s criminal convictions do not automatically disqualify them under Ed. Code, Section 44237, (e) from being employed in a private school in a position requiring contact with minor pupils but the school – nevertheless – wants to deny the applicant employment because of the criminal conviction(s); and
2. When an applicant for a position that does not require contact with minor pupils has criminal conviction(s) and the school wants to deny the applicant employment because of the criminal conviction(s) after it had extended the applicant a conditional offer of employment.

When the school intends to deny employment to an applicant in one of the above circumstances due to conviction history (either solely or in part), the school must first conduct an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.  As part of the individualized assessment, employers must consider, at minimum, the following factors:

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

The modified regulation provides examples of the types of information that employers may consider for each of the above factors.  First, consideration of the nature and gravity of the offense or conduct may include:

• 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 (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.

Second, consideration of the time that has passed since the offense or conduct and/or completion of the sentence may include:

• 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.

Third, consideration of the nature of the job held or sought may include:

• 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.

The modified regulation states that an applicant’s possession of a benefit, privilege, or right required for the performance of a job by a licensing, regulatory, or government agency or board is probative of the applicant’s conviction history not being directly and adversely related to the specific duties of that job.  The modified regulation also requires employers to consider any evidence of rehabilitation or mitigating circumstances that is voluntarily provided by the applicant, or by another party at the applicant’s request, before or during the individualized assessment.

If after conducting the individualized assessment, the employer makes a preliminary decision that the applicant’s conviction history disqualifies the applicant from employment, employers are required to comply with certain notice obligations.  The modified regulations have modified and expanded upon those notice obligations, and generally require employers to provide a written notice to the applicant that contains all of the following:

1. Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer.
2. A copy of the conviction history report utilized or relied on by the employer, if any (g., consumer reports, credit reports, public records, results of internet searches, news articles, or any other writing containing information related to the conviction history that was utilized or relied upon by the employer).
3. Notice of the applicant’s right to respond to the notice before the preliminary decision rescinding the offer of employment becomes final.
4. An explanation informing the applicant that, if the applicant chooses to respond, the response may include submission of (a) evidence challenging the accuracy of the conviction history report that is the basis for the preliminary decision to rescind the offer, or (b) evidence of rehabilitation or mitigating circumstances.
5. Notice of the deadline for the applicant to respond, if the applicant chooses to do so, which must be at least five business days from the date of the applicant’s receipt of the notice (the modified regulation provides direction on determining when notice is received based on various methods of transmission).

The modified regulation provides a number of examples of evidence, including documentary evidence, rehabilitation or mitigating circumstances that applicants may provide.  Employers cannot require applicants to provide evidence of rehabilitation or mitigating circumstances.  If, however, applicants choose to provide that information, employers must accept it.

The modified regulation further prohibits employers from taking a number of actions during this process, including:

1. Requiring an applicant to provide a specific type of documentary evidence (g., a police report as evidence of domestic or dating violence);
2. Disqualifying an applicant from the employment conditionally offered for failing to provide any specific type of documents or other evidence;
3. Requiring an applicant to disclose their status as a survivor of domestic or dating violence, sexual assault, stalking, or comparable statuses; and/or
4. Requiring an applicant to produce medical records and/or disclose the existence of a disability or diagnosis.

As under the prior regulation, if an applicant provides timely written notice to the employer that the applicant disputes the accuracy of the conviction history and is taking specific steps to obtain evidence supporting the applicant’s assertion, then the applicant must receive at least five additional business days to respond before the employer’s decision to rescind the conditional employment offer becomes final.

Also as under the prior regulation, employers must consider any information submitted by the applicant before making a final decision regarding whether or not to rescind the conditional offer of employment.  The modified regulation, however, provides that when considering evidence of rehabilitation or mitigating circumstances, employers may consider the following factors in addition to those set forth above as part of the individualized assessment:

1. When the conviction led to incarceration, the applicant’s conduct during incarceration, including participation in work and educational or rehabilitative programming and other prosocial conduct;
2. The applicant’s employment history since the conviction or completion of sentence;
3. The applicant’s community service and engagement since the conviction or completion of sentence, including, but not limited to, volunteer work for a community organization, engagement with a religious group or organization, participation in a support or recovery group, and other types of civic participation; and/or
4. The applicant’s other rehabilitative efforts since the completion of sentence or conviction or mitigating factors.

Employers remain obligated to provide written notice to an applicant when the employer makes a final decision to rescind the conditional offer and deny an application based solely or in part on the applicant’s conviction history.  Employers may use the sample Final Notice to Revoke Job Offer form, and other forms, from the California Civil Rights Department.

Final Note

As this article does not address every aspect of the modified regulation, private K-12 schools are encouraged to contact LCW to assist with fully understanding all of the modifications and their impact on the school’s hiring policies and practices.