California’s Department of Fair Employment and Housing (DFEH) recently enacted regulations that impact an employer’s ability to use criminal background checks in employment decisions. The new regulations go into effect on July 1, 2017. The text of the new regulations can be found here. Ultimately, the regulations will make it more difficult for employers to have blanket “no hire” policies and procedures for individuals with criminal convictions.
Before we get into the new regulations, I think we should step back and remember the purpose of the Fair Employment and Housing Act (Act) as it relates to employment. The Act serves to protect and safeguard the civil rights of all individuals that seek or hold employment. The Act prohibits discrimination because 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 for individuals over 40 years of age, military and veteran status, and sexual orientation.
The use of criminal background checks in employment has come under fire in more recent years as it can have an adverse impact on certain protected categories of employees. In fact, the Equal Employment Opportunity Commission (EEOC) issued enforcement guidance on Consideration of Arrest and Conviction Records in Employment Decisions under Title VII on April 25, 2012. So DFEH continuing to focus on this area is no surprise.
Basically, the new regulations state that employers are prohibited from using criminal history in employment decisions if doing so would have an adverse impact on individuals on a basis outlined in the Act that the employer cannot prove is job-related and consistent with business necessity or if the employee or applicant has demonstrated that a less discriminatory alternative means of achieving the specific business necessity is effective. In addition, the regulations outline certain uses of criminal background that are always prohibited. Employers are prohibited from the considering the following types of criminal history, or seeking such history from employees, applicants, or a third-party, when making employment decisions:
An arrest or conviction that did not result in conviction;
Referral to or participation in a pretrial or post-trial diversion program;
A conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to law;
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; and
A non-felony conviction for possession of marijuana that is two or more years old.
In addition to the above listed prohibited criminal history uses, an applicant or employee can show that the use of other criminal history has an adverse impact based on a protected status.Adverse impact can be established by the use of conviction statistics or by any other evidence that shows adverse impact.State or national-level statistics showing substantial disparities in the conviction records of one or more categories protected by the Act are presumptively sufficient to show adverse impact.
The new regulations outline how an employer can establish what is job related and consistent with business necessity.For instance, the criminal conviction consideration policy or practice needs to bear a demonstrable relationship to successful performance on the job and in the workplace and measure a person’s fitness for the specific position, not merely to evaluate the person in the abstract.In order to establish job-relatedness and business necessity, an employer must demonstrate that the policy or practice is appropriately tailored, taking into account at least the following factors:
The nature and gravity of the offense or conduct;
The time that has passed since the offense or conduct and/or completion of the sentence; and
The nature of the job held or sought.
Demonstrating that a policy or practice of considering conviction history in employment decisions is appropriately tailored to the job for which it is used as an evaluation factor requires that an employer either:
Demonstrate that any “bright-line” conviction disqualification or consideration can properly distinguish between applicants or employees 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 duties or responsibilities of the position; or
Conduct an individualized assessment of the circumstances and qualifications of the applicants or employees excluded by the conviction screen.
Before an employer may take an adverse action based on conviction history obtained by a source other than the applicant or employee, the employer must give the impacted individual notice of the disqualifying conviction and a reasonable opportunity to present evidence that the information is factually inaccurate. If the applicant or employee establishes that the record is factually inaccurate, then that criminal record cannot be considered in the employment decision.
The new regulations do not impact an employer’s obligation to follow federal or other state laws that require certain background checks and adherence to licensing requirements.
In addition, employers cannot forget that when using investigative consumer reports they must comply with the Fair Credit Reporting Act and the California Investigative Consumer Reporting Agencies Act. Finally, local laws or city ordinances may impose additional obligations on employers with respect to the use of criminal convictions such as in San Francisco.
What should employers do? Employers should reevaluate any policy or practice of not hiring individuals with certain convictions. In addition, employers should make sure that their notification practices prior to taking adverse action are compliant with the new regulations.
I know that the regulations in California can be overwhelming for employers but we need to think of the beauty that California provides as well. Amazingly the above picture was taken in Death Valley at Lower Darwin Falls, a spring feed water fall!