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Many states and cities have recently passed "ban-the-box" measures that require employers to remove criminal-record questions from job applications and reserve those inquiries for a later point in the hiring process.Proposed regulations from the California Fair Employment and Housing Council (FEHC), however, would prohibit employers from using criminal background reports if members of a particular race, national origin or other protected category were disproportionately affected. The reports could be used only if they were job-related and consistent with business necessity. Employers in California would have to show that their screening practices were "appropriately tailored" to the job, according to the proposed regulations. The rules would also limit the use of blanket policies that exclude all applicants with a particular criminal conviction. "Employers in a lot of industries will have a difficult time with the burden that these regulations will impose," said Alden Parker, an attorney with Fisher Phillips in Sacramento, Calif.Employers will be reluctant to inquire about such information during the hiring, selection or promotion process in order to avoid a claim of discrimination, said the Society for Human Resource Management (SHRM) and the California Chamber of Commerce in a comment letter to the FEHC. Yet employers may also increase their risk of being sued for negligent hiring, according to the letter.
Impact on Protected Groups
The main change in the FEHC's proposal is that it provides guidance on how the use of criminal background checks might create an adverse impact on applicants based on race, age, national origin or other protected categories, said Matthew Goodin, an attorney with Epstein Becker & Green in San Francisco.In April 2012, the Equal Employment Opportunity Commission (EEOC) issued guidance on how employers can use criminal records in employment decisions. The proposed California regulations "essentially mirror EEOC regulations and prohibit the consideration of criminal backgrounds in employment decisions if doing so would create an adverse impact on an individual within a protected group, unless the employer can demonstrate that considering the criminal history is job-related and consistent with business necessity," Goodin explained.Even if these criteria were met, an employer could still face liability if an applicant could show there is a less discriminatory way to meet the business's needs. Under the proposed regulations, criminal convictions of a certain type, such as assault and battery, might not preclude someone from getting a job as a cashier at a restaurant, whereas a theft conviction might, Parker explained.Employers wouldn't be able to simply conduct a "pass or fail" screen, he said. They would be required to go much deeper into the background and see if the offenses are reasonably related to the job.
EEOC Guidance Challenged
The EEOC guidance—which the FEHC used to create the proposed regulations—currently faces a court challenge. The state of Texas filed a lawsuit claiming that the agency exceeded its regulatory authority under Title VII of the Civil Rights Act of 1964. The EEOC's guidance says that "categorical bans on the hiring of felons can constitute a violation of Title VII when they disproportionately affect" black and Hispanic workers.This conflicts with many state agencies' blanket policies against hiring convicted felons or applicants with certain misdemeanor convictions. The 5th U.S. Circuit Court of Appeals recently gave Texas the green light to pursue the lawsuit, holding that "the guidance forces Texas to alter its hiring policies or incur significant costs."A federal district court has yet to decide the underlying question of whether the agency's guidance exceeds its authority under Title VII.Just as Texas argued that the EEOC exceeded its authority, SHRM believes there is no legal authority for the proposed regulations in California. "Given that the proposed regulations are so heavily based upon the EEOC guidance, these regulations should be withdrawn until the final determination of this litigation," SHRM said in its comment letter.
Existing Rules Incorporated
The proposed regulations incorporate rules under the existing law that prevent employers from asking about an arrest or detention that did not result in a conviction, a referral to or participation in a pretrial or post-trial diversion program, or a conviction that has been judicially dismissed, sealed, expunged or statutorily eradicated.Existing regulations also preclude inquiries about certain marijuana offenses that are more than two years old. However, the proposed changes would expand this to prevent employers from considering any nonfelony conviction for marijuana that is two or more years old.
"The regulations are not final yet and may be amended before enactment. So, while employers need not do anything now, they should be prepared for these new regulations to go into effect," Goodin said. Employers should "prepare to train managers, particularly those involved in hiring decisions, as to the new restrictions," he added. "Inquiries about criminal convictions should be limited to convictions that would exclude someone from a particular position due to business needs." Parker said employers should review their job descriptions to make sure they reflect the tasks that employees are actually performing. For example, he said, if the position involves cash handling, that should be included in the job description. This may be relevant when considering whether a theft conviction is job-related.Additionally, "employers should document justifications for considering criminal convictions in connection with any particular positions, and should document the reasons for any decision in which an employee or applicant is refused a particular job due to a criminal conviction," Goodin explained.
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