Recently, the state Fair Employment and Housing Council (FEHC) finalized new regulations that would further limit a California employer’s ability to use criminal history when making employment decisions. Specifically, the new regulations, which are based on the FEHC’s 2012 Equal Opportunity Commission Guidance, would prohibit an employer from considering a job applicant’s or employee’s criminal history if doing so would result in an adverse impact on individuals within a protected class, such as gender, race, and national origin. This means a job applicant must first prove that an employer’s background screening policy actually has an adverse impact on a protected class. This includes proving that the screening policy disproportionately affects certain groups more than others, such as African Americans.
If an adverse impact is shown, the employer must demonstrate that the policy is job-related and consistent with business necessity. The employer in deciding these two factors must consider the nature and gravity of the criminal offense, the amount of time elapsed since the offense, and the nature of the job held/sought by the employee. Under FEHC regulations, employers must specifically assess people on a case by case basis while considering criminal history. Employers must be able to justify why they rejected a specific candidate. In other words, blanket policies that preclude any criminal record will now be illegal.
It should be further noted that even when the employer implements job-related screening processes, an applicant or employee can still prevail on an adverse impact claim if s/he can demonstrate the employer could use a less discriminatory policy without increasing significant costs.
Lastly, the new regulations also contain employee notice requirements. This means that before an employer can adverse action against someone based on their record, he or she must give this person notice to refute his or her criminal history.
The regulations will become effective July 1, 2017.
Other Criminal Disclosure Changes
Earlier this year, Assembly Bill (A.B.) No. 1843, which amended Section 432.7 of the California Labor Code, was signed into law to prohibit employers from asking about or considering one’s juvenile records or involvement in the juvenile system if it did not result in a conviction.
Between these new regulations and last year’s law, employers should be careful when considering one’s criminal record. These policies must be narrowly tailored and exclude any blanket prohibitions.
San Diego Criminal Defense and Expungement Lawyer
Having your employment, and therefore your livelihood affected by a criminal record, is no joke. It is also unfair. The Law Offices of David M. Boertje handles all misdemeanor and felony cases, along with juvenile crimes. We assist in the expungement of records no matter your age. We believe that no one trying to turn their life around should be held back by their criminal record. If have been arrested and charged with a crime, contact us for a free and confidential consultation today.