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Regulations ‘borrow heavily’ from 2012 EEOC guidance
New regulations limiting the ability of most California employers to consider criminal history when making employment decisions went into effect July 1.
The California Fair Employment and Housing Council (FEHC)—the agency charged with enforcing California's civil rights laws—adopted regulations prohibiting employers from using criminal history in employment decisions if doing so would have an adverse impact on legally protected classes designated by the state's Fair Employment and Housing Act (FEHA), unless the action was job-related and consistent with business necessity. The regulations outline various ways in which employers can face liability when using a candidate's criminal history in hiring and other employment decisions.
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"In many ways, the FEHC regulations borrow heavily from the EEOC's [Equal Employment Opportunity Commission's] 2012 guidance," said Jennifer Mora, an attorney and background check expert with law firm Littler, based in Los Angeles.
The 2012 EEOC guidance does not prohibit employers from using criminal records but outlines best practices that employers should follow for applicants with protected characteristics under Title VII of the Civil Rights Act of 1964. The act prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion.
"Even though one's status as an 'ex-offender' is not considered a protected characteristic under California law or Title VII, the regulations allow a candidate to bring a discrimination claim if the employer's use of conviction records results in an adverse impact on those in protected classes," Mora said.
However, applicants bear the burden of proving an employer's criminal background check policy has an adverse impact on a protected class. Adverse impact can be proven with conviction statistics that show substantial disparities in the hiring of individuals with conviction records of one or more protected characteristics, Mora said. She added that employers can "rebut this presumption by offering evidence showing that there is reason to expect a different result after accounting for any particularized circumstance, such as the geographic area covering the applicant or employee pool, the particular types of convictions being considered, or the specific job at issue."
Once an applicant establishes an adverse impact, the burden of proof shifts to the California employer to show that its screening policy is job-related and consistent with business necessity.
"Employers must do this by taking into account the nature and gravity of the criminal record, time passed since the offense and completion of sentence, and the nature of the job," said Les Rosen, an attorney and the CEO of Employment Screening Resources, a background screening firm based in the San Francisco area. "California employers must also conduct an individualized assessment before making employment decisions based on criminal records and give applicants notice they have criminal records that may warrant adverse action and time to explain why adverse action should not be taken."
Rosen added that if the background information is obtained from any third-party source, including the employer's independent search of court records or the Internet, the regulations require applicants to be given notice—before employers take an adverse action—to argue that the criminal records are inaccurate. If the candidate can show that the record is inaccurate, it can't be considered, he said.
Mora noted that the FEHC's notice requirement differs from compliance with the Fair Credit Reporting Act (FCRA), which requires notice only if the employer takes adverse action against a candidate based on information contained in a background check report. It's also different from "ban-the-box" laws in Los Angeles and San Francisco, where employers must notify candidates of an adverse action based on criminal record information from any source, including a self-disclosure by the candidate.
California employers should also note that Assembly Bill 1008, which is similar to the FEHC regulations, is currently pending in the state Senate.
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