Support for fair hiring practices continues to gain momentum with policy makers and workers alike. Currently, there are 29 states which have adopted such policies and 9 states have removed conviction questions from job applications in the private sector. California has recently “banned the box” for the public sector, and is currently trying to do the same for private employers, but until then they have imposed fair chance regulations that have impacted both.
When did the changes take effect?
The Office of Administrative Law approved the new regulations proposed by the California Fair Employment & Housing Council (FEHC), which went into effect July 1st, 2017. These regulations introduce additional limitations on the use of criminal history by employers in California, and includes steps employers may need to take when making an adverse decision based on an applicant’s criminal history.
Which employers are affected?
The law applies to employers or other covered entities regularly employing five or more individuals. This also includes the State of California, any political or civil subdivision, counties, cities, city and county, local agencies, or special districts, regardless of employing 5 or more individuals. It is important for all employers to read the Ordinance and discuss with their legal counsel how it may affect their organization.
Do these regulations “ban the box” for private employers?
No, this requirement is limited to state or local agency employers, who are prohibited from asking applicants to disclose information concerning their conviction history until they determine the applicant meets the minimum employment qualifications. Private employers may still be required to “Ban The Box” under other laws, such as Los Angeles and San Francisco.
Are there restrictions on what criminal history information is sought or considered by employers?
Employers are restricted from seeking or considering:
- An arrest or detention that did not result in conviction
- Referral to or participation in a pretrial or post-trial diversion program
- A conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to law
- An arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while a person was subject to the process and jurisdiction of juvenile court law; and
- A non-felony conviction for possession of marijuana that is two or more years old. California has expanded this restriction as current California law prohibits employers from asking only about certain marijuana-related offenses older than two years.
What process is established to address any potential adverse impact on a protected class?
- The applicant or employee bears the burden of demonstrating that the policy of considering criminal convictions has an adverse, or disparate, impact on a protected class (e.g., race, national origin, etc.).
- If the applicant or employee is successful, the burden shifts to the employer to establish that their policy is justifiable because it is job-related and consistent with business necessity by demonstrating that the policy or practice is appropriate, considering at least:
- The nature and gravity of the offense or conduct
- The time passed since the offense or conduct and/or completion of the sentence
- The nature of the job held or sought
- If the employer is successful, the applicant or employee still may demonstrate there is a less discriminatory policy that services the employer’s goals as effectively without significantly increasing their cost or burden.
Can employers still consider and take adverse action based on an applicant’s criminal history?
Regardless if the employer utilizes an individualized assessment or has a bright-line policy, before adverse action may be taken based on conviction history obtained by a source other than the applicant or employee (e.g. a report from a background screening company or internally generated research), they must provide the impacted individual with:
- Notice of the disqualifying conviction; and
- A reasonable opportunity to present evidence that the information is factually inaccurate (and if it is established then that record cannot be considered in the employment decision)
As an employer, you may have obligations under these regulations that may impact your organization and your current processes. We always recommend you discuss changing legislation and regulations with your legal counsel to ensure you understand your responsibilities and what processes you may need to modify.
You can download the full legislative update for this legislation and other important legislation by visiting our Legislative Updates page.
*The information provided above is strictly for educational purposes. It is not intended to be legal advice, either expressed or implied. Accurate Background recommends that you consult with your legal counsel regarding all employment regulations.