California’s Department of Fair Employment and Housing (“DFEH”) revised an existing regulation and adopted a new regulation regarding employers’ use of employees’ and applicants’ criminal history in employment decisions, effective July 1, 2017.
Restrictions that are specific to the use of criminal records were moved from California Code of Regulations, Title 2, Section 11017 to the new regulation, Section 11017.1. Importantly, these regulations do not override state or federal laws or regulations prohibiting persons with certain convictions from holding particular jobs, or requiring a particular criminal background screening process for them, such as peace officers, individuals employed at health facilities where they will have regular access to patients and/or controlled substances, and employees supervising children.
First, the regulation prohibits employers from seeking or requesting the following information when making employment decisions such as hiring, promotion, training, discipline, layoff and termination, regardless of whether there is an adverse impact on a protected class:
- Arrests or detention that did not result in a conviction.
- Referral to or participation in a pretrial to post-trial diversion program.
- Convictions for which the record has been judicially ordered sealed, expunged, or statutorily eradicated. (Note: This prohibition was identical in the old regulation; however the new regulation eliminates a previous prohibition on considering misdemeanor convictions for which probation has been successfully completed or otherwise discharged.)
- Any 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. This adds a prohibition on considering unsealed juvenile records that was not contained in the old regulation.
- Any non-felony conviction for marijuana possession that is two or more years old.
Further, employers who consider convictions can be found to have discriminated against employees or job applicants where a use of that information has an adverse impact based on a protected classification. The new regulation, Section 11071.1 specifies that it is the applicant or employee’s burden to prove an adverse impact; however, it also provides that state- or national-level statistics showing substantial disparities in the conviction records of one or more categories enumerated in the FEHA are “presumptively sufficient to establish an adverse impact.” In its Final Statement of Reasons for the new regulation, the DFEH specifically cited such statistics published by the EEOC, the California Attorney General’s Criminal Justice Statistics Center, and its OpenJustice initiative. The employer may rebut this presumption by making a showing that there is “a reason to expect a markedly different result after accounting for any particularized circumstances such as the geographic area encompassed by the applicant or employee pool, the particular types of convictions being considered, or the particular job at issue.”
If an employee or applicant establishes an adverse impact, the employer can avoid liability by demonstrating that using the conviction information was job-related and consistent with business necessity. The regulation states, “in order to establish job-relatedness and business necessity, any employer must demonstrate that the policy or practice is appropriately tailored,” and requires that the employer consider at least the following three mandatory factors: the nature and gravity of the offense or conduct; the time that has passed since the offense or conduct and/or completion of the sentence; and the nature of the job sought.
In order to demonstrate that a policy or practice of considering conviction history is appropriately tailored, and therefore job-related and consistent with business necessity, the employer must either:
- Demonstrate that any “bright line” consideration of conviction information can properly distinguish between applicants and employees that do and do not pose an unacceptable level of risk and that the convictions considered have a direct and specific negative bearing on the persons’ ability to perform the duties or responsibilities necessarily related to the employment position. DFEH will presume that any “bright-line” rule that relies upon convictions that are more than seven years old is not job-related and consistent with business necessity. An employer may rebut this presumption with evidence.
- Demonstrate that it conducts individualized assessments of the circumstances and qualifications of applicants or employees excluded by the conviction screen. This individualized assessment must include notice to the employee or applicant that they have been screened out because of a criminal conviction discovered through research, and give them a reasonable opportunity to demonstrate that the exclusion should not be applied due to their particular circumstances. The employer must then consider that information, and determine whether the policy as applied to the individual employee or applicant is job-related and consistent with business necessity.
Finally, even if an employer demonstrates that its policy or practice of considering conviction history is job-related and consistent with business necessity, it may still be liable if an employee or applicant can demonstrate that there is a less discriminatory policy or practice that serves the employer’s goals as effectively as the challenged policy or practice, such as a more narrowly tailored 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.
If your agency, special district, or school considers criminal background information in employment decisions, you should review your practices prior to July 1, 2017, to ensure compliance with the new regulations, and contact employment counsel if you have any questions or concerns.