Written By ESR News Blog Editor Thomas Ahearn
The California Fair Employment & Housing Council (FEHC) – the state agency charged with enforcing California’s civil rights laws – has approved the “California FEHC’s Consideration of Criminal History in Employment Decisions Regulations” that will take effect on July 1, 2017, and restrict the use of criminal records by employers in hiring and other employment decisions.
The 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 EEOC Guidance 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 that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion.
The EEOC recommends employers “Ban the Box” and remove the question about criminal records from job applications, not basing decisions on an arrest records, and conducting “individualized assessments” before adverse employment decisions. 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.
California employers are also prohibited 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 burden of proof shifts to California 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.
California employers must conduct an “individualized assessment” before making employment decisions based on criminal records and give applicants and give employees notice they have criminal records that may warrant adverse action and time to explain why action should not be taken. Employers must decide whether information is job-related or consistent with business necessity.
Before California employers may take adverse actions, the regulations require 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 criminal records are inaccurate. If they are inaccurate, employers will not be permitted to consider those records.
California 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.
ESR Creates Infographic for California FEHC Regulations
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 FEHC criminal history regulations that take effect on July 1, 2017. The infographic is available at www.esrcheck.com/California-FEHC-Criminal-History-Regulations-Infographic/.
NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.
© 2017 Employment Screening Resources® (ESR) – Making copies or using of any part of the ESR News Blog or ESR website for any purpose other than your own personal use is prohibited unless written authorization is first obtained from ESR.