On March 27, 2017, the California Office of Administrative Law approved the Fair Employment Housing Counsel’s (FEHC) new regulations clarifying existing limitations on criminal background checks and conforming to the Equal Employment Opportunity Commission’s (EEOC) position that criminal background checks may have an adverse impact on protected classes.
Employers still retain the right to screen prospective applicants for criminal or other legitimate disqualifying activities in their past in order to make an informed hiring decision.
Common-Sense Approach Prevails
The new CA legislation simply clarifies old legislation and the changes make good common sense. Overall not every legal record means you should deny a candidate employment. Stuff happens in life and responsible people make corrections and move on. Everybody needs a job, but sometimes not every job is right for everybody.
The new CA regulations largely track the EEOC April 2012 Enforcement Guidance. They require employers to justify their background screening policies or practices by demonstrating they bear “a demonstrable relationship to successful performance on the job and in the workplace and measure[s] the person’s fitness for the specific position(s), not merely to evaluate the person in the abstract,” and that the policy or practice is “appropriately tailored” to the job.
An applicant or employee challenging an employer’s criminal background check program carries the initial burden of proof. They must show the employer’s policy or practice of considering criminal history has a disparate impact upon a protected class (e.g., race, national origin, and so on).
If the applicant or employee demonstrates a disparate impact, the burden shifts to the employer to justify their policy is job related and consistent with business necessity.
The employer must demonstrate that their policy or practice is tailored to the specific individual circumstances, considering:
(1) the nature and gravity of the offense or conduct;
(2) the time that has passed since the offense or conduct and/or completion of the sentence; and (3) the nature of the job held or sought.
Big Mistake: Systemic “No-Hire” Discrimination
If an employer adopts a policy or practice automatically disqualifying all applicants with certain types of past convictions, then they are in direct opposition to this new policy. The new regulations consider a policy like this as, “not sufficiently tailored to the specific circumstances of the job.” In other words, a blanket approach to deny employment based only on criminal conviction (felony or misdemeanor) is an invitation for legal scrutiny throughout the United States, not just in CA.
The new California law goes into effect on July 1, 2017, and it won’t be long before this concept rolls across America. Employers using criminal background checks should carefully review their policies and practices to ensure they are in compliance with these new regulations. This is also a great time to review you’e companies compliance with applicable local ordinances such as “Ban the Box” laws enacted in several cities and states.
Employment Background Checks remain a completely legal best practice to guard against fraud, violence, theft, and sex crimes in the workplace. These new regulations do not change employer’s requirement to perform their due diligence in hiring. They also do not lessen the threat of employment liability lawsuits for negligent hiring. Most importantly, federal and state compliance laws are the law and ignoring them can be very costly.
The employment background check landscape is always changing, so stay up to date with HireSafe and we’ll help you safely navigate the compliance minefields.