Updated California Regulation Regarding Employers’ Use of Criminal History in Employment Decisions

Blog Post

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.

Key Takeaways

Compliance Corner

About Littler:

Checkr, in partnership with Littler, is proud to present relevant, up-to-date news, briefs, and analysis in employment and labor law. Littler is the largest global employment and labor law practice with more than 1,300 attorneys in over 75 offices worldwide.