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HOW FAR CAN AN EMPLOYER GO IN USING APPLICANTS’ AND EMPLOYEES’ CRIMINAL HISTORY?

8/7/17

By: Rebecca J. Smith

California has not banned an employer’s ability to use the criminal history of an applicant or employee in making an employment decision adverse to the individual, however additional hurdles have been put into place for employers with the implementation of regulations from the Fair Employment and Housing Council (FEHC) which became effective July 1, 2017.

Practically what does this mean for an employer? First, it means that an employer cannot use criminal records and information if such use would have an adverse impact on individuals in a legally protected class designated by the Fair Employment and Housing Act (FEHA). The regulations require employers to show that the use of the criminal history is appropriately tailored, job related and consistent with a business necessity. To do this, the employer must perform an individualized assessment of the applicant and employee, take into account the nature and gravity of the offense, the time that has passed since the offense or conduct and/or completion of the sentence, and the nature of the job held or sought. Even if the employer does all this the employee still may challenge the employer’s decision by demonstrating that there was a less discriminatory alternative that the employer could have used.

Additionally, under current state law there are matters which an employer may not consider:

• An employer may not inquire into or consider any non-felony misdemeanor conviction related to marijuana possession that is more than 2 years old
• An employer may not inquire into or consider information related to arrests, convictions or other proceedings that occurred while an applicant or employee was subject to the process and jurisdiction of the juvenile court
• An employer may not inquire into or consider an arrest or detention that did not result in a conviction,
• An employer may not inquire into or consider an offense which resulted in a referral to or participation in, any pretrial or post trial diversion program
• An employer may not inquire into or consider a conviction that has been judicially dismissed or ordered sealed.

The take-away, employers with a “bright line” policy that disqualifies candidates with a criminal history or that disqualifies individuals with certain types of convictions will violate the FEHA. In light of the new regulations and the Department of Fair Employment and Housing’s (DFEH) more proactive enforcement efforts in the recent past, employers should reevaluate any practice that uses criminal history as a disqualification from employment. Employers should also keep an eye on the California Legislature as there is pending legislation to impose a state-wide ban on the review of criminal history before an offer of employment has been made.

If you have any questions or would like more information, please contact Rebecca Smith at rsmith@fmglaw.com.