On March 27, 2017 the California Office of Administrative Law (OAL) approved new regulations relating to the use of criminal background information in employment decisions. These new regulations will go into effect on July 1st of this year.
In addition to restating the existing bans on the use of criminal history in California (like using criminal history information to make decisions on hiring, promotion, and termination), the new regulations also require employers to prove that any criminal history information sought is job-related and in accordance with a business necessity. In order to show that the use of criminal history information is justifiably job-related, an employer must take the following factors into consideration:
- The nature and gravity of the offense;
- The time that has passed since the offense and/or completion of the sentence;
- The nature of the job sought or held.
The regulations go on to state that in order for an employer to prove that their practice of seeking criminal history is appropriate for the job in which it is used  as an evaluation factor, the employer must either:
- Conduct an individualized assessment of the applicant, which includes informing them that they’ve been screened out because of a criminal conviction. The applicant must then be given the opportunity to provide additional information/reasoning that their criminal history should not be considered. The employer can then determine whether the additional information is sufficient for an exception.
- Show that any “bright-line†conviction disqualification policy can properly distinguish candidates who do and do not pose an acceptable level of risk and that the convictions have a direct and specific negative bearing on the person’s ability to perform the duties of the position. Any bright-line policy that includes conviction information that is seven or more years old will not be considered appropriate to meet a job-related risk. It is then up to the employer whether or not to refute that consideration.
Regardless of which way an employer chooses to demonstrate that their practice of seeking criminal history is relevant to the job, the employer must provide the individual in question with notice and the ability to challenge the accuracy of the information before adverse action can be taken. If the individual is able to show that the information is inaccurate, it cannot be used in the employment decision.
In addition to these new regulations, the California legislature has introduced legislation (AB 1008) that addresses the use of prior criminal history information in employment decisions.
Stay tuned to our blog for more information.
