On September 6, 2019, the California Fair Employment and Housing Council of the Department of Fair Employment and Housing proposed amendments to regulations regarding criminal history, the California Family Rights Act (CFRA), and the New Parent Leave Act (NPLA).
Employers may recall that AB 1008 and SB 63 (2017-2018 Reg. Sess.) added new sections to the Fair Employment and Housing Act that respectively “banned the box” by prohibiting employers from seeking criminal history information until a conditional offer of employment is made and enacted the New Parent Leave Act to expand parental leave rights for employers of 20-49 employees. The proposed regulations describe how those two laws operate and fit into the broader context of the FEHA. Specifically, the proposed amendments: (1) articulate the parameters of AB 1008 in the context of existing regulations regarding the consideration of criminal background histories in employment decisions; (2) distinguish between ban-the-box and the adverse impact theory of liability; (3) clarify ambiguities in AB 1008, particularly how to calculate “five business days”; (4) integrate SB 63 into existing regulations regarding the CFRA; and (5) identify differences between the CFRA and NPLA. A full copy of the proposed amendments can be found here.
Notably, because employers performing criminal history investigations may also obtain consumer reports such as background checks, employers should verify that their materials, policies, and practices all comply with the federal Fair Credit Reporting Act and the California Investigative Consumer Reporting Agencies Act. Practice Tip: The FCRA has an updated Summary of Rights that can be downloaded here.
On October 23, 2019, the Council will hold a public hearing regarding the proposed amendments. By that date, all written comments regarding the proposed amendments must be submitted to the Council for consideration.
Employers should review their employment applications and leave policies to ensure compliance with these anticipated amendments to the California Code of Regulations.