Effective July 1, 2017, new regulations adopted by the California Fair Employment and Housing Council (FEHC) will restrict an employer’s ability to inquire about or consider the criminal history of applicants and employees, except where specifically permitted by law.
Employers are already prohibited from considering or seeking information about certain types of an applicant or an employee’s criminal history, such as arrests that did not result in a conviction, and convictions that have been judicially dismissed, sealed, or expunged, or that are over 10 years old, etc. Employers may also be subject to various local laws that provide additional limitations, such as “ban the box” ordinances.
Under the new regulations, if an employee or applicant can prove that an employer’s policy or practice has an adverse impact on a protected category of individuals (which may be established through the use of conviction statistics or by offering “any other evidence that establishes an adverse impact”), the employer will have to prove that the policy or practice bears a relationship to successful performance on the job and in the workplace, and measures the person’s fitness for the specific position, taking into account (1) the nature and gravity of the offense or conduct, (2) the time that has passed since the offense or conduct and/or completion of the sentence, and (3) the nature of the job held or sought. The employee or applicant may still prevail if he or she can demonstrate that there is a less discriminatory policy or practice that serves the employer’s goals without significantly increasing the cost or burden on the employer.
Employers in California should review their applications for employment and other relevant policies and procedures before July 1, 2017 to ensure compliance with the new regulations. To avoid potential class action lawsuits, all of an employer’s pre-employment inquiries and practices must comply with other related laws, including the Fair Credit Reporting Act, the California Investigative Consumer Reporting Agencies Act, and the California Consumer Credit Reporting Agencies Act, which limit an employer’s ability to conduct third party background checks and credit checks.