The final regulations for the “Consideration of Criminal History in Employment Decisions” were recently issued and will become effective July 1, 2017. These regulations affect how employers may consider criminal history in making employment decisions under the state Fair Employment and Housing Act (FEHA).

According to the final regulations, employers are prohibited from using criminal records and information in employment decisions if:

  1. Doing so would have an adverse impact on individuals in a legally protected class, as listed in the FEHA, that the employer cannot prove is job-related and consistent with business necessity or
  2. The employee or applicant has demonstrated a less discriminatory alternative means of achieving the specific business necessity as effectively.

If an employer can demonstrate that its policy or practice of considering criminal history is both job-related and consistent with business necessity, thereby meeting the first two requirements, an adversely affected employee or applicant may still prevail if they can show there is a less discriminatory policy or practice.

For guidance, the regulations provide the following definitions:

• Adverse Impact: a substantially different rate of selection in hiring, promotion, or other employment decision, which works to the disadvantage of members of a race, sex, or ethnic group. The employee or applicant has the burden of proving an adverse impact.

• Job-related and Consistent with Business Necessity: an employer must demonstrate that the policy or practice is appropriately tailored, taking the following 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 held or sought.

Less Discriminatory Alternative Means: any policy or practice that serves the employer’s goals as effectively as the challenged policy or practice.

Employers are specifically prohibited from seeking or considering the following types of criminal history when making employment decisions such as hiring, promotion, training, discipline, or lay-off, and termination, regardless of the “adverse impact” requirement above:

  1. An arrest or detention that did not result in conviction;
  2. Referral to or participation in a pretrial or post-trial diversion program;
  3. A conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to law;
  4. 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; and
  5. A non-felony conviction for possession of marijuana that is two or more years old.

Finally, the regulations require additional steps in the adverse actions process. Employers must provide specific notice of the disqualifying conviction and a reasonable opportunity to present evidence that the information is inaccurate to the employee or applicant prior to taking any adverse action. If the employee or applicant can prove the record is factually inaccurate, then it cannot be considered in the employment decision.

Best Practices Tip: California employers should review their policies and procedures related to criminal background checks with their employment attorney and background screening provider to ensure compliance with the regulations by the effective date of July 1st.

Read the full text here.

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