The Department of Fair Employment and Housing (DFEH) finalized new regulations limiting the ability of employers to consider criminal history when making employment decisions.
California law already prohibits employers from asking job applicants to provide information regarding marijuana convictions over two years old, detentions or arrests not resulting in conviction, convictions that have been dismissed or sealed, and information related to referrals to a work/education program as part of a term of probation. The regulations outline additional specific criminal history information that employers are prohibited from seeking or considering.
In addition, the regulations cover the consideration of “other” criminal convictions (e.g. those that are not specifically enumerated in the regulations). If the use of other criminal convictions to make an employment decision disproportionately impacts protected groups (ex. applicants of a particular race, national origin sex etc.) then the employer must be able to show that an exclusion based on that criminal history is nonetheless justifiable because it is “job-related and consistent with business necessity.” The regulations provide a detailed process to establish whether the exclusion is job related and consistent with business necessity by using either a “bight-line” method or an “individualized assessment” method. Click here to review the regulations in detail.
Coverage: Employers with employees working in California.
Effective: July 1, 2017
Action Required:
If you use criminal history to screen applicants and have concerns that your practices might disproportionately impact protected groups then you may wish to contact an attorney to conduct an attorney-client privileged review of your practices.
Contact your Human Resources Business Partner for guidance before you reject an applicant or take adverse action against an employee based on criminal history or if you have any questions regarding this update.