A new regulation approved by the Fair Employment and Housing Council limits employers’ ability to make hiring decisions based on an applicant’s or employee’s criminal history. The new law, titled “Regulation §11017.1: Consideration of Criminal History in Employment Decisions,” went into effect on July 1, 2017. Unless otherwise allowed by law, the regulation expressly prohibits basing employment decisions on a conviction for non-felonious marijuana possession more than two years old, an arrest that did not lead to a conviction, or any proceedings which occurred in juvenile court or which were expunged from the applicant’s record.
Further, employers who consider convictions in the decision-making process can be found to have discriminated against employees or job applicants where a use of such information has an adverse impact on a protected class (gender, race, national origin, etc.). To avoid a discrimination claim, employers must demonstrate that the convictions considered were related to aspects of the job and were consistent with business necessity. Screening procedures should consider the gravity of the offense, how much time has passed, and the type of employment.
If screening is used to eliminate candidates without consideration of a candidate’s individual circumstances, the employer has the burden of showing that the criteria used adequately distinguish between candidates who pose an unacceptable level of risk and those who do not. This burden is especially high if the conviction is more than seven years old. Whether a candidate would pose an unacceptable level of risk would be highly dependent on the type of employment being sought, among many other factors.
In the event the information regarding an applicant’s criminal history is obtained through a third party, an employer must confirm with the applicant that the data provided is accurate before making any adverse employment decisions based on that information. Employers who choose to obtain criminal background checks should keep in mind that both the Fair Credit Reporting Act and the California Investigative Consumer Reporting Agencies Act impose additional requirements upon the use of information provided in such reports.
If you have any questions concerning your company’s use of background information in hiring decision or any California’s employment laws, the attorneys at Navigato & Battin are here to help.