Before a conditional offer can be rescinded, a California employer must perform an individualized assessment as to whether the applicant’s criminal history “has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.” (California Code of Regulations Section 11017.1(c)(1)).
The specific requirements for the individualized assessment must include, at a minimum, consideration of the following factors: • the nature and gravity of the offense or conduct;
• the time that has passed since the offense or conduct occurred or the completion of the sentence;
• the nature of the job held or sought.
If, after the individualized assessment, the employer makes a preliminary decision to revoke the conditional offer, the employer must notify the applicant in writing of the preliminary decision. The notice (which can be part of the pre-adverse action notice) must include all the following information:
• the conviction(s) that were the basis for the preliminary decision;
• a copy of the information relied on for the decision;
• statement that the applicant or their representative has the right (but is not required) to respond before the decision becomes final, including challenging the information’s accuracy and submitting evidence of rehabilitation or mitigating circumstances;
• the deadline to respond (no less than five business days after receipt of the notice, and email notice is considered received two business days after it is sent).
If the applicant timely notifies the employer in writing that additional time is needed to respond, the applicant must be given at least five additional business days to respond to the notice before the employer’s preliminary decision becomes final.
The new regulations also expressly prohibit employers from (1) mandating that the applicant respond to the notice or provide information or (2) refusing to consider any information provided by the applicant. The employer must notify the applicant in writing of any final decision to rescind the offer and include information regarding available procedures to challenge the decision and the right to contest the decision by filing a complaint with the California Civil Rights Department.