New regulations passed by California’s Department of Fair Employment and Housing (DFEH) are limiting the ways in which employers can use background screens. The regulations, which went into effect on July 1, 2017, prevent employers from considering certain types of criminal convictions, require notice to the applicant of any disqualifying conviction and allow them to provide a reasonable opportunity to present evidence of inaccuracy, and prohibits consideration of a criminal background on individuals within a protected class if it will result in an adverse impact on the candidates.
According to Lexology.com, employers are prohibited from considering any non-felony convictions for marijuana possession if the conviction is more than two years old. Any criminal background information uncovered from a source other than the candidate, such as a CRA, the employer must provide the applicant notice and allow time for them to present evidence of factual inaccuracy before any adverse action is taken. The Fair Credit Reporting Act (FCRA) states only that the applicant must be notified of any adverse action taken as a result of a background report.
Prohibiting the consideration of a criminal background if it will adversely impact a protected class brings California into alignment with current federal law. Protected classes include race, national origin, age, veteran status, physical or mental disabilities, etc. But the burden of proof is on the applicant to prove that they were unjustly overlooked for a position or a promotion because of their protected class status.
The new rules, according to Lexology.com, should encourage employers to conduct a compliance audit of the policies to ensure that they are in line with the new state regulations, including:
- Audit their applications and policies on the use of criminal background checks of applicants and current employees
- Have in place a written policy on the use of criminal background checks of applicants and current employees
- Eliminate questions about criminal convictions on the job application and use criminal background checks only at the time a job offer is to be made
- Tailor the use of criminal background checks to the nature of the job sought, the nature of the criminal offense and the amount of time that has elapsed since the conviction and completion of the sentence
- Before taking an adverse hiring or employment action, be prepared to demonstrate that the use of criminal background checks is consistent with business necessity
- Anticipate legal challenges to hiring and employment practices
- Consider conducting an adverse impact analysis on hiring or employment practices that exclude large numbers of job applicants or employees
These new California regulations are only the latest in many that are regularly implemented by states across the nation. To ensure that our clients always have the latest in up-to-date information regarding compliance in your state and legal trends across the country, AmericanChecked purchases the State Rules Register database. This searchable database maintains the latest in current regulations specific to a single law or all laws/regulations in a state. For more information about the State Rules Register or information about becoming an AmericanChecked customer, contact us at firstname.lastname@example.org.