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The California Fair Employment and Housing Council (FEHC) recently finalized and approved new regulations that will impact employers’ use of criminal history when making employment decisions. The regulations track closely with the 2012 EEOC Enforcement Guidance for Consideration of Arrest and Conviction Records in Employment Decisions, and are expected to become effective on July 1, 2017.

Summary of Regulations
As shared on Lexology.com, JDSupra.com and Littler.com, the following is an overview of the regulations. The regulations address “adverse (or disparate) impact” on protected groups, and prohibit employers from using criminal history information unless it is job-related and in line with business necessity.

  • Like the EEOC Guidance, Employers should maintain policies and procedures that allow for an “individualized assessment” when considering the criminal history of an applicant. The so called “Green Factors” are also outlined by the EEOC.
    •  Employers should consider:
      • the nature and gravity of the offense
      • the amount of time that has elapsed since the offense
      • the nature of the job held or sought.
  • Employers should be prepared to justify their policies and adverse decisions related to the criminal history of an applicant. Convictions that lead to an adverse hiring decision should have a “direct and specific negative bearing on the person’s ability to perform the duties of the position.”
  • Employers are also required to provide the applicant or employee with a notice that they have been screened out due to a criminal conviction, and also provide them the opportunity to demonstrate that the information is inaccurate (This requirement is in line with Adverse Actions requirements under the FCRA)  or that exclusion should not apply to their specific case.
    • If the applicant disputes the conviction and the result of the dispute proves the conviction information was inaccurate, employers can no longer consider that information in their hiring decision.
    • If the applicant provides additional information as to why their conviction should not exclude them from the position, employers must take that information into consideration before making a final decision.
    • Note: If you obtain the conviction information on your own (without the assistance of background screening company), you must still provide applicants with this notice.
  • The regulation also expands the type of convictions related to possession of marijuana that employers are prohibited from seeking information related to or considering in the hiring process. Previously the list included certain misdemeanors for marijuana older than 2 years (for small amounts of marijuana).  The list now includes ANY non-felony misdemeanor conviction related to marijuana possession older than 2 years.

Affected employers should familiarize themselves with these regulations, and should review their policies, employment applications, job descriptions and hiring practices are compliant. If you have questions, please contact your Corporate Screening representative or our Compliance team. Corporate Screening will continue to provide information and guidance as the calendar gets closer to the implementation date.