Effective July 1, California employers must comply with new Fair Employment and Housing Council regulations when considering an applicant’s or employee’s criminal history. The regulations further limit an employer’s use of criminal history in making employment decisions and largely reflect the EEOC’s 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions. KEY TAKE AWAY AND REQUIRED HR ACTION This article provides a detailed summary of the new regulations. However, the key takeaway is that employers who determine that an individual is not qualified for employment based on a conviction record must provide that individual with notice of the decision and an opportunity to provide relevant information about the conviction and its circumstances before the decision is finalized. The new notice requirement differs from the required pre-adverse action notice required by the Fair Credit Reporting Act and applies even if an employer conducts a background check internally, without using a consumer reporting agency. This means that California employers need to update their recruiting practices, prepare appropriate pre-adverse action notices and create a process to consider any supplemental information provided by a candidate before finalizing the decision. We have provided a more in-depth overview of the new regulations below. OVERVIEW OF THE NEW REGULATIONS Like the EEOC’s Enforcement Guidance, the new regulations delineate the steps an employer must take to lawfully consider conviction records when evaluating individuals for employment. If the employer’s practice of considering conviction records creates an adverse impact based on a protected category, such as gender, race or national origin, the employer must demonstrate that its consideration of criminal conviction records is job-related and consistent with business necessity. To make such a showing, employers must assess the following factors: (i) the nature and gravity of the offense or conduct; (ii) the amount of time since the offense or conduct and/or completion of the sentence; and (iii) the nature of the job held or sought. Employers must also ensure the conviction is closely related to the individual’s ability to perform the job duties. They can make this showing in one of two ways:
Employers may conduct an individualized assessment of the circumstances of the conviction and its impact on the individual’s qualification for the job at issue. If the employer determines the individual is not qualified for the job based on the criminal conviction, the employer must: (1) give notice to the individual that s/he is not eligible for employment because of the criminal conviction; (2) provide a reasonable opportunity for the applicant or employee to demonstrate that the criminal conviction should not exclude him/her from employment based on the particular circumstances; and (3) consider the information provided by the applicant or employee before a final decision is made.
In very rare circumstances, employers may have a “bright line” conviction disqualification policy, which provides that certain convictions render an individual ineligible for certain jobs. For example, a bank might have a blanket policy prohibiting tellers from having theft convictions because they regularly handle cash. Such a “bright line” policy will not be lawful unless the employer proves that the disqualifying conviction has a direct and specific negative bearing on the person’s ability to perform the position’s specific duties and responsibilities. Convictions that are seven or more years old are subject to a rebuttable presumption that they are not sufficiently tailored to be job-related and consistent with business necessity.
Regardless of whether an employer uses a bright-line policy or conducts an individual assessment, if the employer learns of the conviction from a source other than the applicant or employee, the employer must provide the individual with notice and the ability to challenge the accuracy of the conviction information. This notice and opportunity to explain the information must be provided even under circumstances where such notice would not otherwise be required under the Fair Credit Reporting Act or the Investigative Consumer Reporting Agencies Act. Finally, even if the employer can show that a conviction-related exclusion is job-related and consistent with business necessity, to prevail on a discrimination claim, the employer must be able to prove that there was not a less discriminatory alternative that would as effectively achieve the business necessity. The regulations preserve an employer’s ability to comply with applicable law when determining whether conviction records render an individual ineligible for employment. For example, employers who are subject to federal or state laws that prohibit individuals with certain convictions from holding particular jobs will not run afoul of the regulations by following those laws. California employers need to update their recruiting process and documents to comply with the new regulations. Specifically, employers should prepare and/or modify pre-adverse action letters and a process to collect information from a candidate before finalizing an employment decision that is based on conviction record information. For questions regarding the new regulations, please contact Brenda Kasper or Lisa Frank.