Written By ESR News Blog Editor Thomas Ahearn
On January 10, 2017, the California Fair Employment & Housing Council (FEHC) approved regulations first proposed in 2016 that restrict the use of criminal records of job applicants and employees by employers in hiring and other employment decisions. The new regulations from the FEHC – the state agency charged with enforcing California’s civil rights laws – will likely take effect on July 1, 2017.
The California FEHC regulations are based in large part on the Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 issued by the U.S. Equal Employment Opportunity Commission (EEOC) – the agency that enforces federal laws prohibiting employment discrimination – on April 25, 2012.
The 2012 Guidance from the EEOC does not prohibit employers from using criminal records but outlines best practices that employers should follow for applicants and employees with protected characteristics under Title VII of the Civil Rights Act of 1964, a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion.
The EEOC Guidance recommends employers “Ban the Box” and remove the question asking applicants about criminal records from job applications, not basing decisions on an arrest records, and conducting “individualized assessments” before adverse employment decisions against applicants or employees. California employers are prohibited from considering or seeking the following types of criminal records:
- Arrest or detention that did not result in a conviction;
- “Any” non-felony conviction for possession of marijuana that is older than two years (the new regulations expand this from “certain” marijuana infractions and misdemeanor convictions).
- Referral to or participation in pre-trial or post-trial diversion programs;
- Arrest, detention, processing, diversion, supervision, adjudication, or court disposition while a person was in juvenile court; and
- Convictions sealed, judicially dismissed, expunged, or statutorily eradicated by law.
The FEHC regulations also prohibit California employers from considering criminal records of applicants and employees in employment decisions that will result in an adverse impact on individuals in a protected class under Title VII. However, applicants and employees bear the burden of proving an employer’s criminal background check policy has an adverse impact on a protected class.
The FEHC regulations shift the burden of proof to employers to show their background check policy is job-related and consistent with business necessity if applicants and employees establish an adverse impact. Employers must do this by taking into account the nature and gravity of the criminal record, time passed since the offense and/or completion of sentence, and the nature of the job held or sought.
Employers must conduct an “individualized assessment” before making employment decisions based on criminal records. They must give applicants and employees notice they have criminal records that may warrant adverse action and time to explain why that that action should not be taken. Employers then must decide whether any new information is or is not job-related or consistent with business necessity.
Before employers may take adverse actions based on criminal records, the FEHC regulations require that applicants and employees be given notice – only if the information is obtained from a source other than them like background check firms or employers – and the chance to show the records are inaccurate. If the criminal records are inaccurate, then employers will not be permitted to consider those records.
Lastly, the FEHC regulations also recognize some employers may be subject to federal or state laws or regulations that prohibit individuals with certain criminal records from holding certain positions, require a background screening process before employing applicants in such positions, or factor into eligibility for occupational licenses and can constitute a defense to adverse impact claims under California law.
Employers Must Be Careful With Criminal Records
Employment Screening Resources® (ESR) is a global provider of background checks based in the San Francisco, California-area that can help employers comply with EEOC and state rules on the legal use of criminal records. ESR founder and CEO Attorney Lester Rosen wrote the book on background checks with The Safe Hiring Manual. To learn more about ESR, please visit www.esrcheck.com.
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