Employers' Consideration of Criminal History: New California Regulations
The California Fair Employment and Housing Council’s (“FEHC”) new regulations limiting employers’ use of criminal history in employment decisions became effective July 1, 2017.
New limits on criminal information to be considered
Under the new regulations, employers are prohibited from asking applicants and employees information about:
· Charges, arrests, indictments, or detentions that did not or have not yet resulted in a conviction
· Referral to or participation in a pre-trial or post-trial diversion program
· Any criminal records that were dismissed, vacated, expunged, sealed, or closed by judicial action
· Any non-felony conviction for possession of marijuana that is more than two years old
Employers are also prohibited from considering criminal history if doing so will result in an adverse impact on a protected group under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex and national origin. Applicants and employees bear the initial burden to show that the employer’s consideration of criminal history has an adverse impact on a protected group. If adverse impact is shown, the burden then shifts to the employers to justify that the employer’s consideration is “job-related and consistent with business necessity.” Employers can rely on factors such as the nature, gravity, and age of the offense and the nature of the job. Bright-line policies that disqualify all applicants or employees with convictions more than seven years old are presumed not to be sufficiently tailored.
New notice requirement
In addition, the new regulations require employers who perform criminal backgrounds to give applicants and employees notice of a disqualifying conviction and a reasonable opportunity to challenge the accuracy of the record. If the applicant or employee can show that the conviction record is inaccurate, the employer cannot consider the conviction in any employment decision.