California Employers Must Grasp Various Criminal-History Restrictions – by Toni Vranjes
New FEHC regulations related to criminal-background checks will take effect July 1
What criminal-background information can California HR professionals consider in the hiring process?
There are a lot of guidelines, regulations, laws and proposals that California employers should understand, and new Fair Employment and Housing Council (FEHC) regulations will add more restrictions for employers effective July 1.
HR professionals in the Golden State must be aware of the following limitations on criminal background inquiries and investigations (in addition to the FEHC regulations):
- California has a “ban-the-box” law for public employers, which requires that they remove the section on job applications asking if an applicant has a criminal history.
- The state is considering a ban-the-box law for all employers in California. A.B. 1008 would prohibit employers from asking about conviction history until after they make a conditional offer of employment.
- Some local jurisdictions, like Los Angeles and San Francisco, have their own ban-the-box ordinances.
HR professionals in California should also be familiar with the U.S. Equal Employment Opportunity Commission’s (EEOC’s) 2012 guidelines on using criminal background information in the workplace.
It can be confusing for employers to determine how to comply and in what geographic locations. However, by figuring out which rules apply and being methodical, employers can make sense of it all.
One lesson to keep in mind: It’s risky to use criminal history as a blanket screening tool, employment attorneys told SHRM Online.
The FEHC recently approved regulations, which take effect July 1, that limit the types of criminal-history policies that companies can adopt. They state that employers can’t have a policy that has an adverse impact on a person in a protected class under the California Fair Employment and Housing Act (FEHA)—unless the policy is job-related and consistent with business necessity.
The regulations note that current state law already prohibits considering certain criminal-history information, such as:
- An arrest or detention that didn’t lead to a conviction.
- Participation in a pre-trial or post-trial diversion program.
- A conviction that’s been dismissed, sealed, expunged or statutorily eradicated.
- An arrest, detention or other proceeding that occurred while subject to juvenile-court law.
- A non-felony conviction for possessing marijuana that’s two or more years old.
The applicant or employee has the burden of proving an adverse impact based on a protected category—such as gender, race or national origin. According to the rules, “State- or national-level statistics showing substantial disparities in the conviction records of one or more categories enumerated in the act are presumptively sufficient to establish an adverse impact.”
For instance, an applicant trying to show an adverse impact based on race could point to conviction statistics to try to prove this, said Benjamin Ebbink, an attorney with Fisher Phillips in Sacramento.
“There are a lot of statistics and studies at the federal level showing racial disparity in criminal-conviction history,” he observed.
If the person shows an adverse impact, the burden shifts to the company to show the policy is job-related and consistent with business necessity. Employers can use three factors to show this:
- The nature of the offense.
- The time that elapsed since the offense or completion of the sentence.
- The nature of the job.
To show that a policy is tailored to the job, the company must either:
- Demonstrate that any “bright-line” rule disqualifying candidates with certain criminal convictions is because of an unacceptable level of risk in that job and that it has a direct negative bearing on the person’s ability to perform the job.
- Review the individual job applicant’s report and give the applicant an opportunity to explain why a conviction shouldn’t bar him or her from consideration for the job.
Before an employer takes an adverse action—like declining to hire a job applicant—the employer must notify the applicant of the disqualifying conviction.
The company also must give the applicant an opportunity to show the information is inaccurate. If it is inaccurate, then that information can’t be considered in the hiring process.
Even if an employer shows that its policy is job-related and consistent with business necessity, the individual gets “one last bite at the apple,” Ebbink said.
Adversely impacted people may still prevail if they can show that there’s a less discriminatory policy that meets the company’s goals as effectively as the challenged policy, according to the regulations.
The FEHC regulations track the 2012 EEOC regulations very closely, noted Patti Perez, an attorney with Ogletree Deakins in San Diego.
Incorporating Ban-the-Box Laws
“Figure out which jurisdiction you do business in, and which rules apply to you currently,” Ebbink said.
If an employer operates across multiple jurisdictions, it should decide whether to have different processes and different job applications in each jurisdiction—or one process that complies with all the rules, he added.
Regarding the proposed statewide ban-the-box law, employers should check with employment counsel about the changes that might need to be made, Ebbink said.
Takeaways for Employers
If an employer decides to use criminal-history information, it should be methodical and thoughtful about what the job involves, according to Perez. And it should make sure the disqualifying crime is relevant to the job duties.
For instance, if hiring a computer professional who will have access to the company server and sensitive documents, the employer might want to ensure that candidates haven’t been convicted of cybercrimes like hacking or identity theft, she said.
For positions dealing with money, like a cashier, the employer might say that crimes related to financial impropriety or theft are disqualifying, Ebbink noted.
But companies also should consider the age of the offense, according to both attorneys. Employers should consult legal counsel to help with tailoring the offense to the job, Ebbink added.”