Assessing Employee Background Check Results in California

Changes to California’s Rules About Evaluating Employee Background Check Results Begin

California has long been home to some of the country’s most extensive and wide-reaching regulations on companies. There even exists a so-called “California effect” where laws passed in the state can influence the actions and behavior of organizations nationwide. California continues to press for reform in many areas, including attempts to change how much the employee background check impacts the hiring process.

The state, which already has one of the nation’s most extensive “fair chance” laws, continues to plan new strategies to increase hiring opportunities and fairness. At one point, it seemed the state might ban background checks altogether. That didn’t happen, but it set the stage for further changes to the state’s laws that ban the box. A background check performed on job applicants, internal employees, and others now comes with a long list of considerations for employers.

What changed in the law?

There were several amendments to the law, such as a provision that applies the law to employees who undergo re-screening following an acquisition or ownership change. However, the most significant changes lie in the “individualized assessment” that employers must conduct when background checks for employees reveal criminal records. Employers must evaluate several elements before denying someone a job because of their criminal history. These factors include how serious the crime was, how long ago it happened, and whether it might relate to the job.

Unfortunately, employers must now evaluate almost a dozen more factors.

California wants employers to take a comprehensive view of the context of a crime and facts about the individual. Some of the new factors companies must consider when a background check reports a crime include:

• If the crime caused harm to people or only to property.
• How much damage the offense caused, and how permanent it was.
• The context surrounding the criminal event.
• Whether personal factors such as a disability, mental illness, domestic or sexual violence, etc., played a part in causing the criminal act.
• Whether the job would create conditions where the same offense could reoccur.

Employers must also prepare to accept a much wider variety of evidence supporting a candidate’s rehabilitative efforts. The new changes went into effect on October 1, 2023, and affect all types of background checks for employment.

How can you gather the information you need?

Unfortunately, the law does not provide any clear guidance or a framework for how employers may ask candidates for this information. You may ask candidates to voluntarily provide any additional context they wish to offer once you’ve reached the vetting and screening stage. You may also ask about specific factors you need to evaluate. However, candidates are not obligated to provide you with an answer to these inquiries, and you may not require a response to begin your evaluation.

Protecting employee privacy grows in importance

Hiring managers are in a challenging position when potentially receiving information on a candidate’s past trauma when it might relate to a criminal charge. Not only does this create more concerns about properly handling information, but you must also take care not to make potentially discriminatory decisions because of what you learn. In this changing regulatory environment, it is more important than ever for companies to have strict data privacy procedures and thorough non-discrimination training.

Review your procedures and ensure compliance today

California employers must comply with the law now. The Fair Chance Act provides various civil penalties to companies violating the regulation. Now is the time to look at the law and adjust your employee background check procedures. Familiarize your HR team members with the requirements of the law and begin developing guidelines for fairly and privately evaluating the new context required by California law.