California Further Restricts Use of Criminal History with New Regulations
The Office of Administrative Law recently approved the new regulations proposed by the Fair Employment & Housing Council (FEHC). These regulations introduce additional limitations on the use of criminal history by employers, and also includes steps employers may need to take when making an adverse decision based on an applicant’s criminal history. The new regulations take effect July 1, 2017.
- Location: California
- Legislation:§ 11017, 11017.1
- Type: Ban the box, Criminal History
- Effective: July 1, 2017
- Applies to employers with 5 or more employees.
- “Ban the box” restrictions are limited to state or local agency employers.
- Employers are prohibited from considering certain types of criminal history.
- Establishes a process to address adverse impact on protected classes.
- May not take adverse action, in certain circumstances, without providing notice to the applicant or employee, and following specific guidelines.
Who does this effect?
The law applies to employers or other covered entities (such as employment agencies, labor organizations, or apprenticeship training programs) regularly employing 5 or more individuals, including individuals performing service under any appointment, contract of hire, or apprenticeship. This also includes the State of California, any political or civil subdivision thereof, counties, cities, city and county, local agencies, or special districts, regardless of employing 5 or more individuals. It is important for all employers to read this Ordinance and discuss with their legal counsel how it may affect their organization.
Do these regulations "ban the box" for private employers?
No, this requirement is limited to state or local agency employers, who are prohibited from asking applicants to disclose information concerning their conviction history until they determine the applicant meets the minimum employment qualifications. Private employers may still be required to “ban the box” under other laws, such as Los Angeles and San Francisco so both private and public employers should be aware of their responsibilities, if any, in the applicable jurisdictions. This is the only section of the regulations that does not apply to private employers.
Are there restrictions on what criminal history information is sought or considered by employers?
Employers are restricted from seeking or considering certain types of criminal history, including but not limited to:
- An arrest or detention that did not result in conviction (Labor Code section 432.7);
- Referral to or participation in a pretrial or post-trial diversion program (Id.);
- A conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to law (e.g., juvenile offense records sealed pursuant to Welfare and Institutions Code section 389 and Penal Code sections 851.7 or 1203.45) (Id.);
- An arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while a person was subject to the process and jurisdiction of juvenile court law (Id.); and
- A non-felony conviction for possession of marijuana that is two or more years old (Labor Code section 432.8). California has expanded this restriction as current California law prohibits employers from asking only about certain marijuana-related offenses older than two years.
What process is established to address any potential adverse impact on a protected class?
- The applicant or employee bears the burden of demonstrating that the policy of considering criminal convictions has an adverse, or disparate, impact on a protected class (e.g., race, national origin, etc.).
- If the applicant or employee is successful, the burden shifts to the employer to establish that their policy is justifiable because it is job-related and consistent with business necessity by demonstrating that the policy or practice is appropriately tailored, taking into account at least:
- The nature and gravity of the offense or conduct;
- The time passed since the offense or conduct and/or completion of the sentence; and The nature of the job held or sought.
- If the employer is successful, the applicant or employee still has the opportunity to demonstrate there is a less discriminatory policy that services the employer’s goals as effectively without significantly increasing their cost or burden.
How do I demonstrate my policy or practice is appropriately tailored for the job? Employers may either:
- Demonstrate any “bright-line” conviction disqualification or consideration can properly distinguish between whether an applicant or employee poses an unacceptable level of risk and the convictions being used have a direct and specific bearing on the person’s ability to perform the job. In many cases, bright-line conviction disqualification or consideration policies or practices that include convictions that are seven or more years old likely are not sufficiently tailored to meet the job-related and consistent with business necessity affirmative defense unless it meets one of the exceptions under the law. OR
- Conduct an individualized assessment of the circumstances and qualifications of the applicants or employees excluded due to their conviction(s). An individualized assessment must involve notice to the adversely impacted employees or applicants (before adverse action is taken) that they have:
- Been screened out because of a criminal conviction;
- A reasonable opportunity to demonstrate that the exclusion should not be applied due to their particular circumstances; and
- Consideration by the employer as to whether the additional information provided or otherwise obtained warrants an exception and shows that the policy as applied to the employees or applicants is not job-related and consistent with business necessity.
Can employers still consider and take adverse action based on an applicant's criminal history?
Regardless if the employer utilizes an individualized assessment or has a bright-line policy, before adverse action may be taken based on conviction history obtained by a source other than the applicant or employee (e.g. a report or internally generated research), they must give the impacted individual:
- Notice of the disqualifying conviction; and
- A reasonable opportunity to present evidence that the information is factually inaccurate (and if it is established then that record cannot be considered in the employment decision).
Are there any exceptions?
Yes, please review and discuss with your legal counsel to determine if you meet one of the exceptions provided in the regulations.
We recommend you review and discuss with your legal counsel your organization’s policies and procedures to ensure compliance with changing laws and regulations. For additional details please refer to FEHC’s regulations. Seyfarth Shaw also posted an overview here. Please note: The information provided above is strictly for educational purposes. It is not intended to be legal advice, either expressed or implied. Accurate Background recommends that you consult with your legal counsel regarding all employment regulations.