Earlier this year, we issued a client advisory concerning the California Fair Employment and Housing Council’s new regulations regarding the use of criminal history for employment purposes, available here. Be mindful of local ordinances governing criminal inquiries. Read our previous advisory here.
The new regulations took effect on July 1, 2017, and, if you have not already done so, now is a good time to review your practices to ensure that they are in compliance with the more restrictive standards.
As a reminder, although applicants and employees still must show that the employer’s consideration of criminal history adversely impacts members of a protected group, once this showing is made, the new regulations place the burden on the employer to justify its exclusion of certain candidates based upon conviction history. To meet this standard, employers must show that the particular conviction bears a demonstrable relationship to the successful performance of the job sought, taking into account the seriousness of the offense, the amount of time that has passed, and the nature of the job. In addition, even if an employer can justify its decision under this high standard, applicants and employees may still make a FEHA claim if they can show that a less discriminatory alternative exists.
Employers who automatically exclude all applicants with certain types of convictions face an even higher burden; they must show that the convictions for which candidates are automatically excluded have “a direct and specific negative bearing on” their ability to perform the job. Bright-line policies that disqualify applicants based on conviction-related information that is seven or more years old are subject to a rebuttable presumption that they are not sufficiently tailored to satisfy the new standards.
Applicants and employees must also have a reasonable opportunity to present evidence that criminal background information is factually inaccurate before the employer takes adverse action based upon such information.