United States: Employment Law Commentary, March 2016


By Lucía X. Roibal

Employers take great measures to avoid hiring dangerous employees—not just to avoid legal liability but, more importantly, to ensure the safety of their employees. One way to achieve this is through the use of application forms, which often ask an applicant whether he or she has been convicted of a crime. Employers also conduct criminal background checks prior to hiring new employees and sometimes before promoting or terminating a current employee. But the use of criminal history in employment decisions comes with its own legal risks, including various federal, state, and local laws that dictate that employers around the country may not freely use this criminal history when making employment decisions. On February 19, 2016, the California Fair Employment and Housing Council (CFEHC) proposed new regulations that lay out various ways in which an employer could be held liable for its use of a potential or current employee's criminal history in making an employment-related decision. These proposed regulations do not "ban the box" for all criminal history, meaning that they do not prohibit an employer from considering any criminal history of a potential applicant. But the proposed regulations do restrict the type of criminal history and the ways in which an employer may consider criminal history in making employment-related decisions.


Employers may face potential liability when using a potential or current employee's criminal history under Title VII of the Civil Rights Act of 1964.1 In 2012, the United States Equal Employment Opportunity Commission (EEOC) issued guidance detailing how an employer's consideration of an individual's criminal history in making an employment decision could violate prohibitions against employment discrimination under Title VII.2 Specifically, the EEOC detailed how an employer's treatment of criminal history could lead to disparate treatment of or have a disparate impact on employees based on their race or national origin.

A disparate treatment violation under Title VII might occur when an employer treats criminal history information differently for applicants based on their race or national origin. Disparate impact, on the other hand, might occur if an employer's neutral policy, such as excluding applicants from employment based on certain criminal conduct, might disproportionately impact some individuals protected under Title VII. The EEOC pointed to national data, such as high arrest and incarceration rates among African American and Hispanic men, to demonstrate how criminal record exclusions might result in a higher exclusion of African American and Hispanic men from eligibility for jobs. This could result in a violation of Title VII if the employer's policy of excluding potential employments based on a criminal record was not job-related and consistent with business necessity.

Title VII protections extend to all states, and states may not make laws that would diminish the protections afforded by Title VII. To this end, the guidance notes that state and local laws or regulations are preempted by Title VII if they "purport[] to require or permit the doing of any act which would be an unlawful employment practice" under Title VII. But Title VII does allow for states to expand upon and elaborate Title VII protections.


A year after the EEOC released the new guidance, California did just that. The CFEHC enacted Title 2, Section 11017 in order to address the potential adverse impact of employer policies and practices on potential employees.3 Unlike Title VII, the regulation lists specific employment practices that are unlawful, such as utilizing an arrest or detention that did not result in conviction in making an employment decision.

Recently, on February 19, 2016, the CFEHC sought to expand upon this Section, and issued a Notice of Proposed Rulemaking recommending amendments to Section 11017.4 The Council proposed these amendments with the objective of describing how the consideration of criminal history in employment decisions might violate California's Fair Employment and Housing Act if such consideration adversely impacts one of the protected classes. The majority of the changes occurs in a new section, titled Consideration of Criminal History in Employment Decisions. These changes prohibit employers from using certain criminal history in hiring, promotion, training, discipline, termination, and other employment decisions.5


Like the previous regulations, the new proposed regulations prohibit employers from inquiring or seeking information regarding certain criminal records. Employers are strictly prohibited from seeking or considering these types of criminal history, irrespective of any adverse impact analysis. Like the previous rules, this list includes arrests or detentions that did not result in a conviction, referral to or participation in a pretrial or post-trial program, and convictions that have been judicially dismissed or ordered sealed, expunged, or statutorily eradicated by law.

Unlike the previous regulations, however, the proposed regulations add to the list the consideration of a nonfelony conviction for possession of marijuana that is two or more years old. The necessity of this addition is clear, especially if you consider current rates for drug convictions in the United States. The National Association for the Advancement of Colored People, in its Criminal Justice Fact Sheet, describes drug conviction disparities between African Americans and whites in the United States.6 For example, while five times as many whites are using drugs as African Americans, African Americans are sent to prison for drug offenses at 10 times the rate of whites. This means that an employer's practice of excluding potential employers based on old, non-felony convictions could result in a disproportionally large number of African Americans being excluded from job positions.

The regulations also prohibit a state or local agency employer from asking an applicant to disclose information regarding conviction history until the employer has first determined that the applicant meets the minimum employment qualifications as stated in the notice for the position. In essence, this acts to "ban the box" during an initial screening of potential applicants before the state knows whether the potential employee meets the minimum employment qualifications. The intent is to require a meaningful analysis of the candidate as a whole, taking into consideration a potential employee's qualifications, without regard to past convictions. Where a state employer might initially exclude all applicants based on a certain conviction, that candidate now must first see whether a potential candidate is qualified and then determine whether he or she should be hired. This allows for the hiring of candidates who have perhaps undergone rehabilitation, and are committed to living a crime-free life. The regulation does not require a state employer to hire someone with a conviction, but merely requires an assessment of whether an applicant meets minimum employment qualifications before asking an applicant to disclose his or her conviction history.


One important addition to the current regulations regards utilization of criminal history that might result in an adverse impact on a protected class. Adverse impact has the same meaning as "disparate impact," as described by the EEOC above. Specifically, an employer is prohibited from using criminal history in employment decisions if doing so would have an adverse impact on an individual within a protected class, and the employer is unable to demonstrate that the criminal history is job-related and consistent with business necessity or if the employee or applicant has demonstrated a less discriminatory alternative means of achieving the specific business necessity as effectively. This addition in essence codifies the EEOC guidelines involving disparate impact in state law.

The proposed regulation also seeks to explain "jobrelatedness and business necessity," in order to demonstrate when this could be used as a defense by an employer and what procedures an employer must follow to use criminal history in an employment decision. The explanation is largely derived from Green v. Missouri Pac. R.R. Co.,7 as well as subsequent Title VII case law. In order to show that the action is job-related and consistent with business necessity, the employer must demonstrate that the policy or practice is appropriately tailored to the job for which it is used as an evaluation factor, 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. Additionally, the criminal conviction consideration policy or practice must bear on a demonstrable relationship to successful performance on the job and in the workplace, and measure the person's fitness for the specific job, not merely to evaluate the person in the abstract.

The employer must also demonstrate either 1) that any bright-line conviction disqualification can properly distinguish between applicants or employees that do and do not pose an unacceptable level of risk, and that the conviction disqualification has a direct and specific negative bearing on the person's ability to perform the duties or responsibilities of the position; or 2) that an employer conducted an individualized assessment of the circumstances or qualifications of the applicants or employees excluded by the conviction screen. If the employer does not include an individualized assessment or considers convictionrelated information that is seven or more years old, the employer's policy or action is subject to the presumption that it is not job-related and consistent with business necessity.


Before an employer may take an adverse action, such as declining to hire, discharging, or declining to promote an adversely impacted individual based on conviction history, the employer is required to give the impacted individual notice of the disqualifying conviction and a reasonable opportunity to present evidence if the information is factually inaccurate.


There are instances where federal or state laws, regulations, or licensing requirements prohibit individuals with certain criminal records from holding specific positions or mandate a screening process before hiring. This includes, for example, certain positions in government agencies, like peace officers, or certain individuals employed in health facilities or pharmacies. In these circumstances, compliance with these laws is considered to be job-related and consistent with business necessity, and acts as a defense to an adverse impact claim under the Act.


Lastly, even if an employer is able to demonstrate job-relatedness and business necessity, the adversely impacted employee may still prevail in a claim if he or she can demonstrate that there is a less discriminatory policy or practice that serves the employer's goals as effectively as the challenged policy or practice, such as a narrowly targeted list of convictions.


The proposed rules also note that employers are required to follow local laws or city ordinances that might provide additional limitations ("FEHA is a floor, not a ceiling for rights."). San Francisco, for example, has implemented the Fair Chance Ordinance (FCO),8 which covers employees who perform work in San Francisco and whose employers are located or doing business in San Francisco and have 20 or more employees. The FCO prohibits employers from asking about arrest or conviction records on a job application. It also forbids employers from considering such things as 1) convictions in the juvenile justice system; 2) non-misdemeanor or felony convictions, such as an infraction; and 3) a conviction that is more than seven years old, unless the position being considered supervises minors or dependent adults. For more information on the FCO, visit: http://sfgov.org/olse/fair-chance-ordinance-fco.


If the proposed regulations are approved, employers in California will have to ensure that their current practices and policies align with the new regulations. Below is a list of tips to aid in this process. The list incorporates an EEOC-issued list of best practices on an employer's use of criminal history.

  • Train managers and other officials and decisionmakers about Title VII and employment discrimination, and pay particular attention to state and local laws that might expand upon laws regarding the use of criminal history in employment decisions.
  • Develop a narrowly tailored written policy and procedure for screening potential and current employees for criminal history

    • Identify essential job requirements
    • Determine offenses that may demonstrate unfitness for performing the job
    • Record justifications for the policy and Procedures
    • Note and keep a record of consultations and research considered in crafting the policy and procedures
  • Train managers, hiring/firing/promoting/ demoting officials, and decisionmakers on how to implement the policy and procedures consistently with Title VII and state and local laws.
  • Review and update any criminal history policies and practices to ensure compliance with all federal, state, and local laws.
  • When asking or searching for criminal history and records, limit inquiries to records or history for which exclusion would be job-related for the position in question and consistent with business necessity.
  • Keep information about applicants' and employees' criminal records and history confidential. Only use such information for the purpose for which it was intended.
  • If and when criminal history is used when making an employment-related decision, keep a record of the decision, detailing the business reasons for the decision.
  • If in doubt, contact an attorney.

New FEHA Regulations Take Effect April 1, 2016

By Nicole Elemen

On April 1, 2016, the Department of Fair Employment and Housing's amendments to the Fair Employment and Housing Act (FEHA) regulations take effect. (See 2 C.C.R. 11008, et seq.) There were several amendments made to the regulations, some of which recite recent changes to FEHA and others of which impose new requirements on employers. Here are some of the most notable amendments:

  • Employers must now have a harassment, discrimination, and retaliation prevention policy. The policy must: (1) be in writing; (2) list all protected categories; (3) prohibit conduct by coworkers, third parties, supervisors, and managers which violates FEHA; (4) include a complaint process that provides: (a) a timely response, (b) impartial investigation by qualified personnel, (c) documentation and tracking for progress, (d) options for remedial action, and (e) timely closure; (5) not require an employee to complain to his or her immediate supervisor; (6) instruct supervisors to report complaints of misconduct to a designated company representative, such as an HR manager; (7) indicate that, upon receipt of a complaint, the employer "will conduct a fair, timely and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected"; (8) state the investigation will be kept confidential to the extent possible; (9) indicate that remedial measures will be taken if misconduct is found; and (10) make clear that employees will not be retaliated against for making a complaint or participating in an investigation. In addition, the policy must be distributed in a manner which ensures employees receive and understand it and it must be translated into any language spoken by at least ten percent (10%) of employees. (§ 11023)
  • Employers are liable for the harassment of employees, unpaid interns, volunteers, applicants, independent contractors, and persons providing services pursuant to a contract. (§ 11034) Employers are also liable for harassing conduct of nonemployees towards employees (§ 11034), and unpaid interns are also protected from discrimination in regards to selection, termination, and training, among other things. (§ 11009)
  • Employers must keep the records of any webinar used for AB1825 sexual harassment prevention training, including written materials, questions, and responses, for two (2) years. (§ 11024) In addition, the training must now include a discussion of abusive conduct, remedial measures to correct harassment, and supervisors' obligation to report harassment, discrimination, and retaliation of which they become aware. (§ 11024) Many employers are now in the process of updating their handbooks in order to comply with the harassment, discrimination, and retaliation prevention policy requirement by April 1, 2016.


1 Available at http://www.eeoc.gov/laws/statutes/titlevii.cfm.

2 See EEOC Enforcement Guidance, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm; see also our Employment Law Commentary, July 2012 Article, EEOC Updates Guidance on Using Criminal Records in Hiring Decisions.

3 Cal. Code Regs., tit. 2, § 11017.

4 Available at http://www.dfeh.ca.gov/res/docs/Rulemaking/Council/Notice_ConsiderCriminalHistory.pdf.

5 Proposed changes available at http://www.dfeh.ca.gov/res/docs/FEHC/FEHC2016Jan/AttachB-CriminalHistory.pdf.

6 Available at http://www.naacp.org/pages/criminal-justice-fact-sheet.

7 Green v. Missouri Pac. R.R. Co. (8th Cir. 1975) 523 F.2d 1290).

8 Available at http://sfgov.org/olse/fair-chance-ordinance-fco.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.