United States: New Regulations Restricting California Employers' Use Of Applicant And Employees' Criminal Conviction History

On January 10, 2017, the California Fair Employment & Housing Council ("FEHC") approved regulations that identify a number of ways in which employers can face liability when using a job applicant or employee's criminal conviction history to influence employment decisions. The new regulations prohibit employers from using an applicant or employee's criminal conviction history in a manner that results in an adverse impact on protected classes under the Fair Employment Housing Act ("FEHA"). The regulations will go into effect on July 1, 2017.

Prohibited Employer Use of Criminal Records

California employers are currently prohibited from seeking information about, or considering, certain types of criminal records when it comes to making employment decisions, regardless of whether or not doing so would have an adverse impact on an individual in a protected class.1 The types of criminal records include:

  • Arrest or detention that did not result in a 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 the law (e.g., sealed juvenile offense records);
  • Arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while a person was subject to the process and jurisdiction of juvenile court law; and
  • Certain marijuana infractions and misdemeanor convictions that are two or more years old.

The FEHC approved regulations expand the above list to include any non-felony convictions for possession of marijuana that are at least two years old.

Employer Use of Criminal Records Resulting in an Adverse Impact

The FEHC regulations prohibit an employer from considering other forms of criminal convictions not listed above if doing so would result in an adverse impact on individuals who are members of a protected class under the FEHA. In other words, employers cannot utilize criminal record screening policies that disproportionately affect individuals who fall within the previously identified protected categories.

The Applicant/Employee Has the Burden of Proving the Adverse Impact

An applicant or employee must prove that the employer's criminal conviction history screening policy has an adverse impact on individuals of a protected class. One way of establishing an adverse impact is through state or national statistics showing that a protected class is affected by the policy in a disproportionate manner when compared to other groups. An employer, however, may rebut this presumption by showing there is a reason to expect a result different from the aforementioned statistics once any particularized circumstances are taken into account (e.g., the types of convictions being considered, the geographic area covering the applicant or employee pool, or the particular job at issue).

The Burden Shifts to the Employer to Prove the Policy is Job-Related and Consistent with Business Necessity

The FEHC regulations state that if an applicant or employee can establish an adverse impact on a protected class, the burden shifts to the employer to prove that the subject policy is job related and consistent with a business necessity. To this end, the regulations require that the employer show that its policy bears a demonstrable relationship to successful performance on the job. That is, it must measure the individual's fitness for his or her specific position(s). To establish this, an employer must demonstrate that the policy is appropriately tailored, taking into account at least the following factors: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense, conduct, and/or completion of the sentence; and (3) the nature of the job held or sought. The determination of whether the policy at issue is sufficiently tailored will be based on whether the employer has a proper "bright line" conviction disqualification rule or conducts individualized assessments of each candidate's convictions.

Establishing A Bright-Line Policy is Appropriately Tailored

Under the FEHC a "bright-line" conviction rule means the employer does not consider the applicant or employee's individualized circumstances in making an employment decision based on criminal conviction history. An employer can demonstrate that its policy is appropriately tailored if the employer can 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 conviction being used to adversely impact applicants or employees has a direct and negative bearing on the individual's ability to perform the job duties essential to the position sought. A "bright-line" rule that takes into account conviction-related information that is seven or more years old is subject to a rebuttable presumption the rule is not appropriately tailored to meet the job-related and business necessity affirmative defense.

Proving An Individualized Assessment Policy is Appropriately Tailored

An employer can likewise satisfy the tailoring requirement if it makes an individualized assessment (i.e., considers the candidate's circumstances and qualifications before making an employment decision based on criminal history). Such an assessment must involve:

  • Notice to the adversely impacted applicant or employee – before any adverse action is taken – that they have been screened out because of a conviction;
  • A reasonable opportunity for the candidate to demonstrate that the exclusion should not be applied due to his or her particular circumstances; and
  • Consideration by the employer as to whether the additional information provided by the individual or otherwise obtained by the employer warrants an exception to the exclusion and shows that the policy, as applied to the applicant or employee, is not job-related and consistent with business necessity.

Notice Requirements

An employer must give the impacted individual notice of the disqualifying conviction and a reasonable opportunity to present evidence that the information is factually inaccurate before an employer can take an adverse action based on information it obtained from a source other than the applicant or employee, such as a criminal background report obtained from a third-party consumer reporting agency. Of note, this requirement is different from the requirements of the Fair Credit Reporting Act ("FCRA") and various "ban the box" laws.

Exceptions for Certain Employers

Compliance with federal or state laws and regulations constitutes a rebuttable defense to an adverse impact claim. Such laws include those that prohibit individuals with certain criminal records from holding specific positions or occupations or require enumerated employers to subject these individuals to a screening process. For example, government agencies employing peace officers and health facilities or pharmacies whose employees have access to medications and controlled substances may be subject to certain heightened requirements for their candidates.

Less Discriminatory Alternatives

Notably, even if an employer demonstrates that its policy or practice is job-related and consistent with business necessity, an adversely impacted applicant or employee may still prevail on a FEHA claim if the individual can demonstrate there is a less discriminatory policy or practice that serves the employer's goals as effectively as the challenged policy or practice. Examples include a more narrowly targeted list of convictions or another form of inquiry that evaluates job qualification or risk as accurately, and without significantly increasing the cost to, or burden on, the employer.

Next Steps for Employers

California employers should review their policies and procedures regarding use of applicant and employee's criminal conviction history to ensure they are compliant not only with the FEHC regulations, but also with "ban-the-box" laws, and federal and state fair credit reporting laws, such as the FCRA.

We will keep you apprised of any future developments affecting criminal conviction policies, and are available to assist with revising existing policies or developing new policies and practices consistent with all applicable laws that address employers' use of criminal records.

Footnote

1 Under the FEHA, protected categories include race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. See Cal. Gov't Code § 12940(a).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
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.

Disclaimer

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.

Registration

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.

Cookies

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.

Links

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.

Mail-A-Friend

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.

Security

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.