Earlier this year, California’s Fair Employment and Housing Council (FEHC) amended and approved regulations to include additional restrictions when using criminal records in the hiring process. The new regulations, which took effect July 1, incorporates guidance previously issued by the Equal Employment Opportunity Commission (EEOC) and California’s evolving drug laws.
The updated regulations focus on two primary areas:
- Prohibition on considering certain criminal records; and
- Adverse impact discrimination and claims
For the first area of focus, the FEHC expanded its list of criminal records employers are prohibited from considering/asking about to include any non-felony convictions for possession of marijuana older than two years. This expansion adds to the current law, which prohibits employers from considering/seeking information about the following:
- an arrest or a detention that did not result in a conviction;
- certain marijuana infractions and misdemeanor convictions that are older than two years;
- referral to or participation in any pre-trial or post-trial diversion program;
- an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while a person was subject to the process and jurisdiction of a juvenile court; and
- convictions that have been sealed, judicially dismissed, expunged or statutorily eradicated by law.
The law’s second focus regarding adverse impact prohibits employers from considering criminal history in hiring decisions if doing so negatively impacts members of protected classes. However, it is up to the candidate or employee to prove the employer’s policy/practice adversely affects a protected class.
If a candidate can prove their claim, the burden of proof then shifts to the employer. From there, the employer must show the policy in question is job-related and consistent with business needs. If the employer successfully proves both, employees/candidates will still have one final opportunity to prove there is a less discriminatory policy/option available.
Whether a discriminatory or bright-line policy is proven or not, however, employers are required to provide notice regarding the disqualifying conviction to the candidate prior to taking adverse action against him/her. From there, the candidate must have the opportunity to prove the conviction information is inaccurate. This notice is required to be wholly independent from other notices (Ban the Box, etc.) and should be distributed to candidates as a separate document.
To comply with these new regulations, all California employers should evaluate their current screening programs and hiring policies to ensure discriminatory policies are avoided.
For more information, or for assistance evaluating your organization’s current program and future needs, contact AccuSource today or by phone at 888-649-6272.
This information is not intended to be legal advice. It is recommended that you speak with your Legal Counsel to ensure compliance with applicable law.