Updated California Regulation Regarding Employers’ Use of Criminal History in Employment Decisions
On July 1, 2017, an updated California regulation regarding the use of criminal history in employment decisions is scheduled to take effect. The updated rule – issued by the California Fair Employment and Housing Council (FEHC) – will impact employers in the types of criminal records that can be considered, as well as how employers make adverse employment decisions based on an applicant’s criminal history.
Items Precluded from Consideration in Employment Decisions in California
Existing FEHC regulations prohibit employers from considering or seeking information regarding certain items in an applicant’s criminal record when making employment decisions. The new regulation expands the list to include any non-felony conviction for possession of marijuana more than two years old. The full list is as follows:
- An arrest or detention that did not result in conviction;
- Referral to or participation in a pretrial or post-trial diversion program;
- A conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to law;
- An arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while a person was subject to the process and jurisdiction of a juvenile court law;
- A non-felony conviction for possession of marijuana that is more than two years old.
Procedure for Making Adverse Employment Decisions Based on An Applicant’s Criminal Record
Before an employer takes an adverse employment action – which includes declining to hire, discharging, laying off, or declining to promote – the employer must give the applicant notice of the specific disqualifying conviction(s) and a reasonable opportunity for the applicant to dispute the accuracy of the conviction(s). The FEHC rule differs from the federal Fair Credit Reporting Act by requiring notice of the specific disqualifying conviction(s) during the pre-adverse action process.
- Employers should take care when using criminal history in making employment decisions.
- As a best practice, employers should conduct an individualized assessment before taking an adverse employment action based on an applicant’s criminal history (For additional guidance, refer to Best Practices for Employers Considering Criminal Backgrounds For Hiring).
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