June 2017 Newsletter – School Districts

New Regulations Limit Use of Criminal Background Information in Hiring and Continued Employment

The California Fair Employment and Housing Council (FEHC), the agency regulating employment and housing discrimination, recently published new regulations on use of criminal history in employment decisions scheduled to go into effect on July 1, 2017.

The new regulations prohibit California employers from utilizing certain enumerated criminal records and information in hiring, promotion, training, discipline, layoff, termination, and other employment decisions, if doing so would have an adverse impact on individuals on a basis protected by the Fair Employment and Housing Act (such as race, color, national origin, ancestry, gender, gender identification, sexual preference, age, disability, pregnancy).  Specifically, the new regulations makes the use of this information unlawful unless the policy or practice is both job-related and consistent with business necessity, or if there is no less restrictive manner to achieve the business necessity effectively.  Further, the regulations create a rebuttable presumption that bright-line rules which result in an automatic disqualification as a result of a conviction, or policies or practices that include the consideration of conviction related-information that is seven or more years old, are not job-related or consistent with business necessity. 

The new regulations were promulgated because of a finding that that consideration of a criminal record may have an adverse impact on individuals based on protected class and apply to both private and public employers.  The regulations define “adverse impact” as occurring when a policy that is neutral on its face, but has the effect of disproportionately screening out applicants in a protected class. It further provides that an employee can prove adverse impact through the use of conviction state or national statistics or other evidence showing substantial disparities in the conviction records of one or more categories enumerated in FEHA.

In addition, employers are prohibited from considering or asking about the following types of criminal history unless specifically permitted by law:  Arrests that did not lead to conviction; referral to diversion programs; juvenile records; convictions that have been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to law; and non-felony conviction for possession of marijuana that is two or more years old. 

Finally, an employer’s compliance with federal or state laws or regulations that mandate particular criminal history screening processes and rules only provides a “rebuttable” defense to a claim of adverse impact.    In other words, even where background checks and background procedures are required to be implemented, an employee or applicant may still prevail in a discrimination lawsuit if her or she can demonstrate that there is a less discriminatory policy or practice that serves the employer’s goals as effectively as the challenged policy or practice, such as one with 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.

For more information regarding this article, please contact Ken Baisch at kbaisch@ericksonlaw.com. For questions in general regarding this newsletter, please contact Kristina Limon at klimon@ericksonlaw.com.

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This publication was prepared solely for information purposes and should not be construed to be legal advice.  If you would like further information on this matter, please contact our office.

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