The Equal Employment Opportunity Commission or EEOC created guidelines in 2012 that outlined the best practices for use of arrest and conviction records in employment screening. These guidelines were meant to avoid a disparate impact on protected classes considered under the EEOC. An article SHRM from January discussed how upcoming regulations would utilize the EEOC guidelines. That is exactly what happened when the Fair Employment and Housing Council or FEHC amended the California Code of Regulation, § 11017.1. Consideration of Criminal History in Employment Decisions. It is also exactly what is likely to happen in various other states moving forward.
Now under the Department of Fair Employment & Housing or DFEH regulations, California employers are required to follow some of the guidelines set forth by the EEOC. You can read the regulation here and we covered some of them back in May but section (e) Establishing “Job-Related and Consistent with Business Necessity” includes the requirement to conduct and individualized assessment.
Today we want to talk about fitting individualized assessment into your hiring procedures. This isn’t just a good idea for California background check’s but as EEOC guidelines continue to be enacted across the US it’s a good idea to consider it for employment background checks in Florida, Texas or any state.
Where does an individualized assessment fit in the background check process?
Federal law under the FCRA already created regulations guiding the background check process and notification of adverse action. This process begins when an employer may not consider a candidate for employment based on a background check report.
This process has very specific steps and the first is to notify the applicant that they may not be hired based on that report. During this step it is important that the employer has not yet made the decision not to hire because criminal records can sometimes be inaccurate. The potential hire must be given time to receive this pre- adverse action notice, review the record and respond to any inaccuracies. You can view our background check compliance recommendations here.
In fact, the California regulations, FCRA and EEOC guidelines all overlap on the need to provide notice to the adversely impacted employees or applicants prior to making a hiring decision. During that adverse action procedure and before a hiring decision is made your company should make an individualized assessment.
Individualized Assessment: Not just a good idea, it’s the law (In California)
When the EEOC created the guidelines for using arrests and convictions in employment decisions they included the definition, “Individualized assessment generally means that an employer informs the individual that he may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him; and considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.”
This idea basically means that employers should not consider a specific record or circumstance disqualifying immediately for all applicants but instead consider each applicant individually allowing them to respond and argue for their consideration. That means as an employer in California you are legally bound to take the time to listen to the applicant and examine their history to determine whether it should disqualify them from employment. During that consideration is important to determine if the offense or conviction is related to the position and that the exclusion of this applicant is necessary for the business. This also allows the applicant time to contact the background check company to challenge an inaccurate record.
When employers consider an applicant individually they look at their record, conduct at the time and consider the factors at play both in the applicants past and since the conviction or offense. The California regulations specifically dictate that employers consider:
(A) The nature and gravity of the offense or conduct;
(B) The time that has passed since the offense or conduct and/or completion of the sentence; and
(C) The nature of the job held or sought.
Not all offenses are the same and it is important to protect both the company and applicant by considering all the factors at play within the applicant’s past. The EEOC guidelines for individualized assessment go further by advising employers to consider all the following:
- The facts or circumstances surrounding the offense or conduct;
- The number of offenses for which the individual was convicted;
- Older age at the time of conviction, or release from prison; 122
- Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct;
- The length and consistency of employment history before and after the offense or conduct; 123
- Rehabilitation efforts, e.g., education/training; 124
- Employment or character references and any other information regarding fitness for the particular position;125and
- Whether the individual is bonded under a federal, state, or local bonding program.
There are more EEOC guidelines that became California background screening regulation and you should ensure your company is familiar with them. You should also know whether your region is subject to ban the box ordinances which require specific reasoning for disqualification.
In this sense it is very important that employers establish their choice to disqualify a candidate is both job related and consistent with business necessity. Disqualifying all candidates for a specific conviction is known as “bright-line” conviction disqualification. While some industries, companies and even federal regulations may require disqualifications of this sort that conviction or offense must still be established as job-related and consistent with business necessity. You can view the California regulations here but stay up to date with HireSafe by subscribing to our newsletter!
Legal Disclaimer: HireSafe is not a law firm, and does not dispense legal advice. The information provided herein is general business information, and is not based on any particular facts or situations and is not to be relied upon as legal advice. You are encouraged to seek advice from your own legal counsel concerning matters covered in this publication.