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.


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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions