New California Regulation: Limitation on Employer Consideration of Criminal History

By SHLC on May 12, 2017 in Legal Update
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The California Fair Employment and Housing Council approved new regulations that limit employers’ freedom to consider criminal history when screening applicants or making employment-related decisions. The new regulations go into effect on July 1, 2017.

Generally

When hiring, promoting, training, disciplining or terminating, employers are strictly prohibited from considering:

(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 sealed or expunged;

(4) An arrest, detention, processing, adjudication, or court disposition that occurred while a person was subject to the jurisdiction of a juvenile court; and

(5) A non-felony conviction for possession of marijuana that is two or more years old.

However, employers may enforce a policy to consider other forms of criminal history—not enumerated above—in making such employment decisions even if doing so would have an adverse impact on an individual of a certain race, national origin, gender or religion, if the employer can prove the policy is job-related and consistent with business necessity.

To prove job-relatedness and business necessity, an employer must demonstrate that the policy takes into account the following factors: (1) the nature and gravity of the offense; (2) the time that has passed since the offense and/or completion of the sentence; and (3) the nature of the job held or sought. In other words, employers are responsible for conducting an individualized assessment of the applicant or employee and the position sought or currently hold. The employer has the burden of proving that the criminal history bears a demonstrable relationship to successful job performance and measures the person’s fitness for the specific position, rather than evaluating the person in the abstract.

Even if an employer can prove that considering non-prohibited criminal history is job-related and consistent with business necessity, the adversely impacted employee or applicant may still prevail if they can demonstrate that there is a less discriminatory policy that serves the employer’s goals as effectively as the challenged policy. For example, an applicant or employee may present an alternative, narrowly targeted list of convictions or another form of inquiry that evaluates job qualification or risk just as accurately, without increasing the cost or burden on the employer.

Required Notice

Before an applicant is denied employment or an employee is terminated based on criminal history, the employer must provide the individual with notice of the disqualifying conviction. The applicant or employee must then be given a reasonable opportunity to present evidence of factual inaccuracy, which the employer must consider to determine whether an exception to the policy is warranted.

Additional Limitations

  • Employers cannot ask applicants to disclose their conviction history on an employment application until the employer has determined that the applicant meets the minimum employment qualifications.
  • If an employer has a “bright-line” conviction disqualification policy, the employer must show that the policy properly distinguishes between applicants and employees that do and do not pose an unacceptable level of risk, and that the disqualifying convictions have a direct and specific negative bearing on the person’s ability to perform the job responsibilities. Bright-line conviction disqualification policies that include conviction-related information that is seven or more years old is subject to a rebuttable presumption that it is not sufficiently tailored.

It is also important to note that an employer is bound by any local laws or city ordinances that may provide additional limitations.

Criminal history considerations, along with other new and developing law issues, will be discussed at SHLC’s Mid-Year Legal Update for California Employers, held via webinar on June 8, 2017 at 12pm to 1pm (PT). For more information and registration for the event, visit: www.suttonhague.com/events/.

To view the California Fair Employment and Housing Regulation on Criminal History in Employment Decisions, visit: https://www.dfeh.ca.gov/files/2017/03/FinalText-CriminalHistoryEmployDecRegulations.pdf