Overview. The California Department of Fair Employment and Housing has published final regulations amending and clarifying rules regarding the use of criminal history information in making employment decisions.
Effective Date. The regulations are effective July 1, 2017.
Details. The California Fair Employment and Housing Act (FEHA) prohibits employers from discriminating against applicants and employees on the basis of: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and military and veteran status.
The FEHA specifically prohibits employers from using criminal information in employment decisions if : (1) it would have an adverse impact on a protected group of individuals and the employer cannot prove the policy or practice is job‐related and consistent with business necessity; or (2) the applicant or employee has demonstrated a less discriminatory, and equally effective, alternative means of achieving the specific business necessity. Among other things, the Amendments do the following:
- Clarify that a policy or practice that otherwise has an adverse impact on a protected group may be permissible when it is job-related and consistent with business necessity;
- Clarify that employers cannot consider convictions that have been dismissed, sealed or expunged when making employment decisions;
- Add that employers cannot consider arrests, detentions, or other juvenile court dispositions when making employment decisions;
- Add that employers cannot consider a non-felony conviction for possessing marijuana that is two or more years old when making employment decisions;
- Clarify that employers that obtain investigative consumer reports such as background checks are also subject to the requirements of the Fair Credit Reporting Act and the California Investigative Consumer Reporting Agencies Act;
- Remind employers that they may be subject to local laws that provide additional limitations, such as in San Francisco;
- Clarify the standards for proving and rebutting adverse impact claims; and
- Clarify what an individualized assessment of the circumstances and qualifications of those excluded by the conviction screen entails.
Demonstrating Policy is Job-Related. If an employer's use of criminal convictions creates an adverse impact, the employer must show that their policy is job-related and consistent with business necessity. To show that the policy or practice is appropriately tailored to the job, the employer must either:
- Demonstrate that any "bright-line" conviction disqualification or consideration can properly distinguish between individuals that do and do not pose an unacceptable level of risk and that the convictions being used to disqualify have a direct and specific negative bearing on the person's ability to perform the job. Generally, policies that rely on conviction information that is seven or more years old are not likely to be found job-related and consistent with business necessity; or
- Conduct an individualized assessment of the circumstances and qualifications of the individuals excluded by the conviction screen. An individualized assessment must involve notice to the adversely 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 the additional information warrants an exception to the exclusion and shows that the policy as applied to the employees or applicants is not job-related and consistent with business necessity.
Even if an employer demonstrates that its use of conviction history is job-related and consistent with business necessity, the employer may still be found to have violated the FEHA if adversely impacted individuals can demonstrate that there is a less discriminatory policy or practice that serves the employer's goals as effectively as the challenged policy or practice.
Pre-Adverse Action Steps. Regardless of whether an employer uses a bright line policy or conducts individualized assessments, before taking an adverse action against an adversely impacted individual based on conviction history obtained by a source other than the applicant or employee (e.g. through a credit report or internally generated research), the employer must give the individual notice of the disqualifying conviction and a reasonable opportunity to present evidence that the information is inaccurate. If the individual establishes that the record is factually inaccurate, then that record cannot be considered in the employment decision.
Call to Action. California employers should review the regulations in full and determine whether changes need to be made to their screening practices. The regulations can be found here.