The California Fair Employment and Housing Council (FEHC) has finalized new regulations under the Fair Employment and Housing Act imposing significant limitations on California employers’ consideration of criminal history information when making hiring, promotion, and other employment decisions. The rules, which borrow heavily from existing EEOC guidelines, go into effect on July 1, 2017.
Criminal History Prohibitions
The rules prohibit employers from ever considering these types of criminal records and information: 1) arrests or detentions that did not result in a conviction; 2) convictions that have been judicially dismissed, sealed, expunged, or otherwise eliminated; 3) criminal proceedings governed by juvenile court; 4) referrals to, or participation in, pretrial and post-trial diversion programs; and 5) non-felony convictions more than two years old for possession of marijuana.
Employers also must comply with other state and local ordinances that provide additional limitations regarding criminal history, as well as federal and state consumer report requirements.
Adverse Impact Considerations
The regulations prohibit employers from considering all other forms of criminal history records and information where doing so creates an adverse impact on individuals who are within a protected class (such as gender, race, and national origin), unless the employer demonstrates that its policy or practice is job-related and consistent with business necessity. To establish that a criminal conviction consideration policy or practice is job-related and consistent with business necessity, the regulations emphasize that an employer must demonstrate that it measures the person’s fitness for specific positions, rather than merely evaluating the person in the abstract. To show that the policy or practice is appropriately tailored, an employer must take these factors into account:
- The nature and gravity of the offense;
- The time that has passed since the offense or completion of the sentence; and
- The nature of the job.
Furthermore, the regulations require employers to maintain policies and procedures that allow for an “individualized assessment” of the circumstances and qualifications of applicants or employees excluded by the conviction screen. The individualized assessment must involve notice to the impacted individuals (before any adverse action is taken) that they have been screened out because of a criminal conviction; a reasonable opportunity for the individuals to demonstrate that the exclusion should not be applied due to their particular circumstances; and consideration by the employer as to whether such additional information warrants making an exception to the exclusion.
On the other hand, if the employer applies a “bright-line" conviction disqualification rule (i.e. one that does not consider individualized circumstances), the employer will need to show that the policy properly distinguishes between candidates that do and do not pose an unacceptable level of risk and that the convictions have a direct and specific negative bearing on the individual’s ability to perform the duties of the position. A “bright-line” rule that considers conviction information more than seven years old is subject to a rebuttable presumption that the rule is not sufficiently tailored to be job-related and consistent with business necessity (unless the employer is required by a federal or state law to prohibit individuals with certain criminal records from holding particular positions or occupations).
Even when an employer can demonstrate that a policy or practice is job-related and necessary for business reasons, the applicant or employee can successfully challenge the policy or practice by showing that there is a less discriminatory alternative means to achieve the employer’s business objective.
In all cases, before an employer may take adverse action based on criminal history that has been obtained through a source other than the employee or applicant (e.g. such as a consumer report or internal employer research), the employer must give the individual notice and a reasonable opportunity to present evidence that the criminal history information is inaccurate. If the individual shows the information is inaccurate, the information cannot be considered in the employment decision. While this notice provision applies only when the criminal history has been provided by a source other than the applicant or employee, other laws, such as the San Francisco and Los Angeles fair chance ordinances, impose detailed notice requirements regardless of the source of the information.
Employers that use criminal history to screen applicants or employees should review their policies and practices to ensure full compliance with the new FEHC regulations, in addition to existing requirements under local fair chance or ban the box laws, and federal and state fair credit reporting laws, such as the Fair Credit Reporting Act. The new regulations are available here.
Miller Law Group exclusively represents business in all aspects of California employment law, specializing in litigation, wage and hour class actions, trials, appeals, compliance advice and counseling. If you have questions about these developments or other workplace obligations, please contact us at (415) 464-4300.
This Alert is published by Miller Law Group to review recent developments in employment law. This material is designed to provide informative and current information as of the date of the Alert, and should not be considered legal advice.