April 11, 2017 California Issues New Regulations for Employers on Consideration of Criminal Background in Employment Decisions

The state of California recently announced new regulations for employers who consider an employee or applicant’s criminal background. The new regulations go into effect July 1, 2017.

Discussion

The new regulations prohibit employers from using criminal history in employment decisions if doing so would have an adverse impact on individuals on a basis enumerated in the Fair Employment & Housing Act (such as gender, race, or national origin) that the employer cannot prove is job-related and consistent with business necessity.

Applicants or employees may show an adverse impact by the use of state- or national-level statistics showing substantial disparities in the conviction records of one or more categories.

Employers, on the other hand, have a heavy burden to show their practices are “job-related and consistent with business necessity.” For example, the criminal conviction consideration policy or practice must “bear a demonstrable relationship to successful performance on the job and in the workplace and measure the person’s fitness for the specific position(s), not merely to evaluate the person in the abstract.”

Even if the employer makes the required showing, the applicant/employee may still prevail in litigation against the employer if he or she demonstrates there was a “less discriminatory alternative” that would meet the employer’s goals.

Thus, the regulations effectively require employers to: (1) narrowly tailor criminal history consideration to the specific position, and (2) carefully assess each individual applicant/employee’s circumstances before taking adverse action.

Background checks made in compliance with federal and state laws, regulations, or licensing requirements (such as for employees at health care facilities) provide a “rebuttable defense” for employers, but are not a complete defense to liability.

In addition, employers who make decisions based on internally conducted public records searches for criminal convictions must provide the applicant/employee with individual notice of the disqualifying conviction and a reasonable opportunity to present information that the record is factually inaccurate. This differs from the Fair Credit Reporting Act (“FCRA”), which only applies to information received from third-party background screening agencies. (However, internally conducted searches were already subject to some portions of California’s Investigative Consumer Reporting Agencies Act (“ICCRA”).)

The full text of the new regulations can be found here.

What Employers Should Do

Employers may want to re-evaluate whether and when to use criminal history in their employment decisions. At minimum, employers should review employment applications and procedures, criminal behavior disclosure policies, and decision-making processes to ensure compliance with the new regulations.

Blanket policies excluding any applicant with a criminal history will not pass muster under the law. Employers should be thoughtful about both the job requirements and the applicant/employee’s individual circumstances before taking adverse action. As with all employment decisions, documenting your work is important.

Note: Employers with employees in San Francisco and Los Angeles are subject to additional requirements by local ordinances.

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This E-Update was authored by Camille Gustafson.  For more information, please contact Ms. Gustafson or any other Paul, Plevin attorney by calling (619) 237-5200.