California Employers Must Comply with Regulations for Use of Criminal History in Employment Decisions

Written By ESR News Blog Editor Thomas Ahearn

California employers should be aware of the “California Fair Employment & Housing Council (FEHC) Consideration of Criminal History in Employment Decisions Regulations” that restrict the use of criminal records by employers in hiring and other employment decisions that took effect on July 1, 2017, according to an article posted on the Society for the Human Resource Management (SHRM) website.

In the article entitled “New Criminal History Screening Restrictions Now in Effect in California,” SHRM Online Editor/Manager Roy Maurer interviewed background check experts that included Attorney Lester Rosen, the founder and CEO of Employment Screening Resources® (ESR), a global background check firm located in the San Francisco, California-area, and the author of “The Safe Hiring Manual.”

The California FEHC – the state agency charged with enforcing the state’s civil rights laws – adopted the regulations that closely follow the “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” that was issued by the U.S. Equal Employment Opportunity Commission (EEOC) on April 25, 2012.

The guidance from the EEOC – the agency that enforces federal laws prohibiting employment discrimination – does not prohibit employers from using criminal records but outlines best practices that employers should follow for criminal records of applicants and employees with protected characteristics under Title VII of the Civil Rights Act of 1964 that include sex, race, color, national origin, and religion.

The regulations identify ways in which California employers can face liability when using the criminal history of “candidates” – job applicants or employees – in hiring and other employment decisions, and prohibit employers from using the criminal history of candidates if it would have an “adverse impact” on legally protected classes unless the action is “job-related and consistent with business necessity.”

Rosen explained how the burden of proof shifts to employers in California to show their background screening policies are job-related and consistent with business necessity once applicants 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 completion of sentence, and the nature of the job,” he said.

“California employers must also conduct an individualized assessment before making employment decisions based on criminal records and give applicants notice they have criminal records that may warrant adverse action and time to explain why adverse action should not be taken,” said Rosen, who also contributed to SHRM articles about Ban the Box, past employment checks, and screening trends.

Rosen added that if the background information is obtained from any third-party source, including the employer’s independent search of court records or the Internet, the regulations require applicants to be given notice – before employers take an adverse action – to argue that the criminal records are inaccurate. If the candidate can show that the record is inaccurate, it can’t be considered, he said.

ESR CREATES INFOGRAPHIC FOR CALIFORNIA FEHC REGULATIONS

Employment Screening Resources® (ESR) has created an infographic to help employers comply with the “California Fair Employment & Housing Council (FEHC) Consideration of Criminal History in Employment Decisions Regulations” that took effect on July 1, 2017. The infographic from ESR 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.

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