The regulations reiterate employers existing prohibitions on the use of criminal history information for employment decisions in California, including:
- an arrest or a detention that did not result in a conviction;
- certain marijuana infractions and misdemeanor convictions that are older than two years;
- referral to or participation in any pre-trial or post-trial diversion program;
- an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while a person was subject to the process and jurisdiction of a juvenile court; and
- convictions that have been sealed, judicially dismissed, expunged or statutorily eradicated by law.
The new regulations will now expand these existing prohibitions to include any non-felony conviction for possession of marijuana that is older than two years.
The FEHC regulations will also prohibit employers from considering criminal history for employment decisions if doing so will result in an adverse impact on individuals within a protected class. The regulations will require applicants or employees to demonstrate that an employer’s consideration of criminal history has a disparate impact on a protected group. Evidence can include conviction statistics or other evidence that demonstrates an adverse impact on a protected class.
If an adverse impact is sufficiently demonstrated, the burden shifts to the employer to validate its hiring policy by showing that it is job-related and consistent with business necessity. Even if an employer can demonstrate the two aforementioned factors, an applicant or employee may still bring a claim if they are able to establish that a less discriminatory alternative is available that would effectively serve the employer’s goals.
In addition to the prohibition of the consideration of criminal history when doing so will result in an adverse impact on individuals within a protected class, the new FEHC regulations also include expanded notification requirements. Prior to an employer taking adverse action as a result of any criminal history information (i.e. during pre-adverse action), they must provide the impacted individual with a notice of the specific disqualifying conviction and also provide a reasonable opportunity for them to present evidence that the information is factually inaccurate – a requirement beyond that of the federal Fair Credit Reporting Act (FCRA).
In light of these new regulations, employers in California should be sure to review their practices and policies regarding the use of criminal history information in hiring to ensure they are consistent with FEHC regulations as well as other local, state and federal laws.
Source: Littler Mendelson PC, 2/21/2017
Posted: April 26, 2017