New Regulations Concerning Criminal History Inquiries

As I stated in my “Ban-the-Box” presentation on March 15, 2017, the California Office of Administrative Law (OAL) had until March 27, 2017 to approve or disapprove new Fair Employment and Housing Council (FEHC) regulations regarding use of criminal background information in employment decisions.  The OAL approved the new regulations last week.  These regulations will be filed with the Secretary of State’s office and will be effective July 1, 2017.  All employers now have additional burdens under these new regulations.

These regulations reiterate existing law prohibiting employers from using specific criminal history information in employment decisions unless it is job-related and consistent with business necessity.  Employers must take into account the following factors:

  • The nature and gravity of the offense or conduct;
  • The time that has passed; and
  • The nature of the job held or sought.

Employers must demonstrate that the consideration of criminal history information is appropriately tailored to the job by either:

  • Conducting an individualized assessment of the applicant or employee; or
  • Showing that any “bright-line” conviction disqualification policy (blanket policy) properly distinguish candidates who do and do not pose an unacceptable level of risk and that the convictions have a direct and specific negative bearing on the person’s ability to perform duties of the position. Any “bright-line” policy that takes into account convictions that are seven or more years old will be presumed to not be sufficiently tailored to be job-related and consistent with business necessity.

Before taking any adverse employment action, such as refusal to hire, employers must give the applicant notice of the disqualifying conviction and a reasonable opportunity to respond.  If the applicant responds, the employer must consider the additional information and consider whether an exception is warranted.

Even if the employer can show that a criminal history inquiry is job-related and consistent with business necessity, an individual can still bring a discrimination claim if he or she can show that there’s is a less discriminatory and more effective alternative means of achieving the business necessity.  For example, is there a more narrowly targeted list of convictions, or is there another form of inquiry that evaluates job qualification or risk?  Employers are encouraged to review and update their criminal history inquiry policies to conform with these new regulations.

Don’t forget that new legislation (AB 1008) is currently making its way through the California Legislature.  To add to the confusion, although this bill may still be amended, if passed in its current form, it will be materially different than these new FEHC regulations.  Stay tuned for more excitement!

James C. Anderson, Esq., Triebsch & Frampton, APC

Disclaimer:  The information provided is just a summary for general information purposes only and is not intended as legal advice.  Please review the actual laws, regulations, and cases to obtain all the latest updates, details, and implications and to reach your own conclusions as to what the law means.  Also seek legal and accounting advice as needed.

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