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California - DFEH Releases Final Regulations for FEHA CFRA NPLA and More

In July 2020, the California Department of Fair Employment and Housing (DFEH) Council released the following approved employment regulations:

  • Criminal history, California Family Rights Act (CFRA), New Parent Leave Act (NPLA) final regulations, effective October 1, 2020, which clarify:
    • Employers that violate the prohibition on inquiring into criminal history information prior to making a conditional job offer may not, after extending a conditional job offer, use an employee’s pre‐conditional offer failure to disclose criminal history information as a factor in subsequent employment decisions;
    • Fair Employment and Housing Act requirements are in addition to the disparate impact component of the law;
    • Define applicant under the Fair Chance Act so employers cannot evade the law by having an individual lose their applicant status by working before a post‐conditional offer review of their criminal history
    • When employers may consider referral to or participation in a pretrial or post‐trial diversion program;
    • The successful completion, or compliance with, probation or parole evidence that demonstrates rehabilitation or mitigating circumstances;
    • An applicant has five business days, not calendar days, to respond to a notice that an employer made a preliminary decision about their conviction history and determined it disqualifies them from the conditional job offer; and
    • The definition of “directly employs” so that it is clear who is a “covered employer” under the CFRA and NPLA.
  • Religious creed and age discrimination final regulations, effective July 1, 2020, which clarify:
    • Replacement of “minorities” with “an individual who is a member of an underrepresented protected class covered by the Act”;
    • When an employer may ask pre-employment questions about applicants’ physical fitness, medical condition, physical condition, or medical history;
    • Examples of impermissible and permissible pre‐employment inquiries and ads;
    • An application’s request for information related to schedule and availability for work may not be used to determine their religious creed, disability, or medical condition and how to properly request information about schedule and availability for work;
    • The business necessity affirmative defense (i.e. “job‐related and consistent with business necessity”);
    • Online application technology that limits or screens out applicants based upon age may violate FEHA;
    • The prohibition against applications being separated or coded includes both manual or electronic separating and coding;
    • The FEHA’s age discrimination provisions apply to those age 40 and older;
    • The presumption of age discrimination and that is applies during layoffs or in salary reductions; and
    • “An attempt to deter or limit” replaced with “deterring or limiting” to eliminate inferring intent when analyzing an advertisement’s lawfulness.

The DFEH also released its harassment prevention training regulations, which are not yet finalized but are intended to be effective January 1, 2021.