California’s Fair Employment and Housing Council has issued proposed regulations on the use of criminal history information in making employment decisions and is giving the interested public until April 7, 2016 to give their feedback.
Presently, California law (Labor Code §§432.7, 432.8) prohibits an employer from asking about or considering the following types of criminal history when making employment decisions such as such as hiring, promotion, termination, or training:
- a prior arrest record that did not result in conviction
- referral to or participation in a diversion program
- a conviction that has been judicially dismissed or sealed
- non-felony marijuana offenses that are more than two years old
Not covered by existing regulations are the use of other forms of criminal history in making employment decisions if doing so would have an adverse impact on individuals on a basis protected by the Fair Employment and Housing Act (FEHA). For example, depending on the type of convictions considered, the job position, and the geographic bounds of the applicant pool, some criminal convictions may adversely impact individuals based on protected characteristics such as gender, race, or national origin. The proposed regulations provide direction in such instances.
If an adversely impacted employee or applicant can show that the use of criminal records adversely affects a group of individuals protected by FEHA, then consideration of the individual’s record may be prohibited. An employer can still defend its policy by demonstrating that the policy is job-related and consistent with business necessity, taking into account:
- the nature and gravity of the offense or conduct
- the time that has passed since the offense or completion of the sentence
- the nature of the job held or sought
Also, the employee or applicant must be given the opportunity to show that his or her record is factually inaccurate. In addition, the employee or applicant can still make a FEHA discrimination claim by showing that a less discriminatory policy or practice that serves the employer’s goals is available.
Employer must be mindful that compliance with federal or state laws or regulations may mandate a criminal background screen before employing individuals for some positions. More information about the proposed regulations is available here.