Written By ESR News Blog Editor Thomas Ahearn
Employment Screening Resources® (ESR) – a global background check firm headquartered in the San Francisco, CA-area – has created an infographic to help employers comply with the “California Fair Employment & Housing Council’s (FEHC) Consideration of Criminal History in Employment Decisions Regulations” that take effect on July 1, 2017. The infographic for the new FEHC regulations on criminal history is available at www.esrcheck.com/California-FEHC-Criminal-History-Regulations-Infographic/.
The California FEHC – the agency that puts into effect regulations that implement the state’s employment and housing anti-discrimination laws – has adopted the guidelines for the use of criminal history by employers promoted by federal agencies including the U.S. Equal Employment Opportunity Commission (EEOC), which issued “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” on April 25, 2012.
Any policy or practice of a California employer that has an “adverse” (negative) impact on employment opportunities of individuals is unlawful unless “job-related and consistent with a business necessity.” Except if otherwise permitted by law, employers are prohibited from considering the following types of criminal history – or seeking such history from the employee, applicant, or a third party – when making employment decisions such as hiring, promotion, training, discipline, lay-off, and termination:
- An arrest or detention that did not result in conviction.
- Referral to or participation in a pretrial or post-trial diversion program.
- A conviction that has been judicially dismissed or ordered sealed, expunged, or statutorily eradicated pursuant to law.
- An arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while a person was subject to the process and jurisdiction of juvenile court law.
- A non-felony conviction for possession of marijuana that is two or more years old.
The infographic from ESR also contains information about additional criminal history limitations, how applicants and employees bear the burden of showing “adverse impact,” how employers must establish any consideration of criminal history is “job-related and consistent with business necessity,” disparate treatment, compliance with federal or state laws or regulations for criminal history, less discriminatory alternatives, and a link to the final text of the FEHC regulations on the use of criminal history.
As reported earlier by ESR News, the FEHC approved the regulations on the use of criminal history by employers on January 10, 2017. The regulations do 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 candidates on the basis of sex, race, color, national origin, and religion.
About Employment Screening Resources® (ESR)
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