California’s Fair Employment and Housing Council has issued proposed regulations concerning the use of criminal history information in employment decisions. The proposed regulations set forth pre-existing statutory prohibitions on using or inquiring about the following types of criminal history about an employee or applicant, when making employment decisions such as hiring, promotion, training, discipline, and termination:
- an arrest or detention that did not result in conviction (Labor Code section 432.7); 2. referral to or participation in a pretrial or post-trial diversion program; 3. a conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated; or 4. a non-felony conviction for possession of marijuana that is two or more years old (Labor Code section 432.8).
In addition to the foregoing restrictions, the proposed regulations go on to explain that consideration of other types of criminal convictions may have an adverse impact on individuals on a basis protected by the Fair Employment and Housing Act (e.g. gender, race, and national origin), depending on factors such as the type of convictions considered, the job position, and the geographic bounds of the applicant pool. According to the proposed regulations, an adversely affected applicant or employee bears the burden of demonstrating that a policy of considering criminal convictions has a direct impact on a protected category of individuals. If the adversely affected applicant or employee makes this showing, the burden then shifts to the employer to establish that the policy is nonetheless justifiable because it is job-related and consistent with business necessity. The policy must bear a demonstrable relationship to successful performance on the job and in the workplace and measure the person’s fitness for the specific job (rather than merely evaluating the person in the abstract). In order to demonstrate that the policy is job-related and consistent with business necessity, the employer must show that the policy or practice is appropriately tailored, taking into account the nature and gravity of the offense or conduct, the time that has passed since the offense and/or completion of the sentence, and the nature of the job held or sought. Demonstrating that a policy or practice of considering criminal history is appropriately tailored to the job for which it is used requires that the employer either (1) conduct an individualized assessment of the circumstances, or (2) if the employer has an across the board conviction disqualification policy, then the employer must demonstrate that the policy can properly distinguish between applicants or employees that do and do not pose an unacceptable level of risk and that the convictions being used to disqualify have a direct and specific negative bearing on the person’s ability to perform the duties or responsibilities necessarily related to the employment position. The proposed regulations further provide that the conviction disqualification policies that do not incorporate an individualized assessment and include conviction information that is seven or more years old (measured from date of disposition, release, or parole) are subject to a rebuttable presumption that they are not sufficient tailored to meet the job-related and consistent with business necessity tests.
Even if the employer demonstrates that its criminal history consideration policy is job-related and consistent with business necessity, an applicant or employee adversely affected by the policy may still prevail on a discrimination claim under FEHA if the individual can demonstrate that there is a less discriminatory policy or practice that serves the employer’s goals as effectively as the challenged policy, such as a more narrowly targeted list of convictions or another form of inquiry that evaluates job qualification or risk as accurately without significantly increasing the cost or burden on the employer.
The proposed regulations further instruct that before an employer may take an adverse action (e.g. declining to hire, discharging) against an applicant or employee based on conviction history, the employer must give the applicant/employee notice of the disqualifying conviction and a reasonable opportunity to present evidence that the information is factually inaccurate. If the applicant/employee establishes that the record is factually inaccurate, then that record cannot be considered in the employment decision.
As the proposed regulations note, employers also must be aware of and comply with local ordinances (e.g. San Francisco) that provide additional restrictions on the use of criminal history information in the employment process. Furthermore, state and local agency employers are prohibited from making criminal history inquiries of applicants until such time that the employer has determined that the applicant meets the minimum employment qualifications for the position. Lastly, the proposed regulations acknowledge that in some instances, employers are subject to federal or state laws or regulations that prohibit individuals with certain criminal records from holding particular positions or occupations and that mandate criminal history screenings. The proposed regulations state that compliance with such laws and regulations is a form of job-relatedness that is consistent with business necessity, and constitutes a defense to an adverse impact claim.
California’s adoption of proposed regulations concerning the use of criminal history in employment decisions comes on the heels of the EEOC’s fairly recent adoption of similar guidance and signals an increasing focus on this area on the part of these agencies (which is usually followed by increasing focus by the plaintiffs’ bar). Employers should review their criminal history policies and practices to ensure compliance with this guidance and any applicable local ordinances. Stay tuned!
Note: What to do with employees who either work or job hunt while on a leave of absence is the current topic on the Podcast. Go to www.pottsandassociates.com and click on the Podcast.