Employers: Criminal History Inquiries May Get Tricky
by Tal Burnovski Yeyni
Proposed Amendment to California Code of Regulations
Last week the California Fair Employment and Housing Council of the Department of Fair Employment and Housing (or, in short, the Council) announced its proposed amendment to the California Code of Regulations, aiming to substantially limit the use of criminal history information in employment decisions.
The use of criminal background checks in the employment context has long been hotly contested. The argument against using the info is that it may have a disparate impact upon a protected class.
According to the U.S. Equal Employment Opportunity Commission’s (“EEOC”) 2012 Guidance on Criminal Background Checks, an employer’s criminal record screening policy or practice may be biased against a Title VII-protected group (i.e., those protected for their race, gender, national origin, etc.). To avoid discrimination claims, employers must demonstrate that the policy or practice is job-related for the positions in question, and consistent with business necessity.
California state law also prohibits employers from asking job applicants to disclose information or otherwise obtain information about:
- Arrests or detentions not resulting in conviction;
- Information concerning a referral to or participation in a criminal diversion program (a criminal diversion program is a work or education program as part of probation);
- Convictions for most marijuana possession offenses more than two years old;
- Convictions that have been judicially dismissed or ordered sealed pursuant to law per Labor Code §§ 432.7, 432.8.
There are several exceptions to the prohibition, e.g., when the employer is required by law to obtain the information, the employer is prohibited by law from hiring an applicant who has been convicted of crime, etc. Labor Code §432.7.
New Rules for Background Checks?
The proposed amendment seeks to introduce regulation 11017.1 “Consideration of Criminal History in Employment Decisions.”
It would set forth statutory limitations when seeking or considering information regarding various types of criminal history (as stated in Labor Code §§432.7, 432.8). This includes the limitations on state agencies from asking applicants about conviction history, until the agency has determined that the applicant has met the minimum employment qualifications (Labor Code § 432.9). It also includes additional limitations on employers pursuant to local laws or city ordinances (e.g., San Francisco’s Fair Chance Ordinance.)
Most importantly, the proposed new regulation mirrors the EEOC guidance regarding criminal background checks. It states:
“Depending on factors such as the type of convictions considered, the job position, and the geographic bounds of the applicant pool, consideration of other forms of criminal convictions … may have an adverse impact on individuals on a basis protected by the [Fair Employment and Housing Act], including, but not limited to, gender, race and national origin.”
Thus, if the policy or practice re criminal information creates an adverse impact, the employer has the burden of showing that the policy is justifiable because it is job-related and consistent with business necessity.
- The criminal conviction consideration policy or practice needs to bear a demonstrable relationship to successful performance on the job and in the workplace and measure the person’s fitness for the specific job, not merely to evaluate the person in the abstract. In order to establish the “job-related and business necessity” criteria, the employer must demonstrate that the policy or practice is appropriately tailored, taking into account at least following factors:
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
- Demonstrating that the policy is appropriately tailored to the job requires the employer to:
a. Show that any bright-line, across the board conviction disqualification can properly distinguish between applicants or employees that do and do not pose an unacceptable level of risk, and that the convictions being used to disqualify have a direct and specific negative bearing on the person’s ability to perform the duties or responsibilities necessarily related to the position; or
b. Show that the employer conducts an individualized assessment of the circumstances or qualifications of the applicants or employees excluded by the conviction screen.
- Note that per the proposed rule, conviction disqualification policies that do not incorporate an individualized assessment and includes a conviction related information that is seven or more years old are subject to a rebuttal presumption that they are not sufficiently tailored.
- Finally, the proposed rule seeks to require employers to give employees notice before taking an adverse employment action regarding the disqualifying conviction and allow the individual a reasonable opportunity to present evidence that the information is factually inaccurate. If the individual establishes that the record is factually inaccurate, then that record cannot be considered in the employment decision.
But that’s not all. Even if the employer demonstrates that its background check policy or practice is job-related and consistent with business necessity, adversely impacted employees or applicants may make an FEHA claim if they 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 a more narrowly targeted list of convictions or another form of inquiry that evaluates job qualifications or risk, without significantly increasing the cost or burden on the employer.
Hearing, “Sentencing” & Bottom Line for Employers
The Council will hold a public hearing regarding the proposed amendment on April 7, 2016. Employers or other interested parties may submit written comments relevant to the proposed amendment until 5:00 p.m. on April 7, 2016.
If the amendment will be adopted employers who use information regarding conviction history in making an employment decision will have to review their policies or practices to determine whether they can demonstrate that their policies are job related and consistent with business necessity.
Tal Burnovski Yeyni is an attorney in our Employment Practice Group.