California: Employment Decisions Based on Criminal History Will Soon Be More Challenging

Most significantly, an organization’s policies or practices for determining when to hire or retain employees based on their criminal history, where the policies or practices do not discriminate against a particular group on their face but have an adverse impact on persons based on a protected category (such as gender, race, or national origin), are only permissible if they are job-related and consistent with business necessity. This means that the reason an employer may deny an applicant for consideration based on the person’s criminal history, must be related to “successful performance on the job and in the workplace and measure the person’s fitness for the specific position.”

This is accomplished if the employer demonstrates that the policies or practices are appropriately tailored, accounting for the following factors:

• Nature and gravity of the offense or conduct;
• Amount of time that has passed since the offense and/or completion of the sentence; and
• Nature of the job sought.

In order to prove that the policies or practices are appropriately tailored, employers must either:

• Demonstrate that (1) any “bright-line” conviction disqualification can distinguish between applicants/employees who do and do not pose an unacceptable level of risk, and (2) the convictions being used to adversely impact an applicant/employee have a direct and specific negative impact on the person’s ability to perform the duties of the position.
• Conduct an individualized assessment of the circumstances and qualifications of the applicant/employee excluded by the conviction screen, including (1) notice to the adversely impacted applicant/employee (before any adverse action is taken) that they have been screened out because of a criminal conviction, (2) a reasonable opportunity for the individual to demonstrate that the exclusion should not be applied due to their particular circumstances, and (3) consideration by the employer as to whether the additional information provided by the individual or otherwise obtained by the employer warrants an exception to the exclusion and shows that the policy as applied to the applicant/employee is not job-related and consistent with business necessity.

Regardless of using the bright-line rule or an individualized assessment, an employer must give the impacted individual notice of the disqualifying conviction and a reasonable opportunity to present evidence that the information is factually inaccurate. If the applicant/employee establishes that the record is factually inaccurate, then that record cannot be considered in the employment decision.

Even if the policies or practices are job-related and consistent with business necessity, if there is a less discriminatory policy or practice that serves the employer’s goals as effectively as the existing one (such as a more narrowly targeted list of convictions or another form of inquiry that evaluates job qualification or risk as accurately without significantly increasing the cost or burden on the employer), then the employer may still be found liable.

Action Items

1. Review the text of the new regulations here.
2. Have your background screening policy and practices reviewed for compliance with the new regulations.
3. Implement procedures consistent with the new requirements when conducting background screens.
4. Consult legal counsel before undertaking any adverse employment actions on the basis of criminal history convictions.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2017 ManagEase, Incorporated.