The California Fair Employment and Housing Council (FEHC) recently issued proposed regulations related to the use of criminal history information in employment decisions.

In part, the proposed amendments recap existing state laws that prohibit employers from utilizing certain criminal background information in hiring, promotion, training, discipline, termination or other employment decisions. For instance, the regulations emphasize that existing laws prohibit employers from considering an arrest or detention that did not result in a conviction when making employment decisions.

On top of reiterating existing prohibitions on the use of criminal history information in California, the proposed amendments go on to recommend a new regulation that would prohibit employers from using other types of criminal history information if doing so:

  • Would have an adverse impact on individuals who are members of a protected class (e.g., race, gender, national origin); and
  • The employer can’t demonstrate that the criminal history is job-related and consistent with business necessity.

Before taking an adverse employment action, such as refusal to hire, an employer would have to give the individual notice of the disqualifying conviction and an opportunity to dispute the accuracy of the information.

Under the proposal, bright-line conviction disqualification policies that don’t contain an individualized assessment of the facts and that include conviction-related information that is seven or more years old will be presumed to not be sufficiently tailored to meet a job-related/consistent with business necessity defense. The burden will be on the employer to rebut this presumption.

Even if the employer can show that a criminal history inquiry is job-related/consistent with business necessity, an individual can still bring a discrimination claim if he/she can show that there is a less discriminatory effective alternative means of achieving the business necessity.

These proposed regulations are not altogether surprising given the recent trend toward limiting when any criminal history information can be required.

In 2012, the Equal Employment Opportunity Commission issued “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions” which discusses how an employer’s use of an individual’s criminal history in making employment decisions could violate prohibitions against employment discrimination.

Some cities have taken matters into their own hands, and employers need to be mindful of local ordinances. For instance, under San Francisco’s Fair Chance Ordinance, covered employers are required to follow strict rules regarding the use of arrest and conviction records and related information. Employers can’t ask about criminal history on a job application or require job applicants to disclose criminal history information on the job application, including any type of check box indicating criminal convictions. Los Angeles is also proposing a “ban the box” ordinance.

Comment Period

Written comments can be submitted until 5 p.m on April 7, 2016. Comments may be submitted by e-mail toFEHcouncil@dfeh.ca.gov.

Written comments can also be mailed to:

Fair Employment and Housing Council
c/o Brian Sperber, Legislative & Regulatory Counsel
Department of Fair Employment and Housing|
320 West 4th Street, 10th Floor Los Angeles, CA 90013

The Council will hold a public hearing at 10 a.m. on April 7, 2016, at the following location:

Maudelle Shirek Building
2134 Martin Luther King Jr. Way
City Council Chambers, Second Floor
Berkeley, CA 94704

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