Headlines are usually only half the story. Don’t arrive at a quick conclusion without reading the details of a law. Always read the actual law and use competent employment legal counsel to help you interpret the law so it is applied properly in your own organization. You should review your hiring policies with such competent legal counsel. And we think it most important to always have an internal person or group of people who have expertise in the legal environment surrounding the use of criminal conviction in the hiring process be involved in hiring decisions. A review by such personnel are very critical particularly when an adverse hiring decision is made.
Take the newest law passed in California regarding an employer’s use of criminal history. When you search the internet, you get these types of results:
- California FEHC Regulations Limit Use of Criminal History for …
- California Employers Further Restricted From Using Criminal History …
- New Regulations Limit California Employers’ Consideration of …
- California Further Limits Use of Criminal Background Information …
The act can be found here. And you have to read the details of the law to understand how the headlines are not an accurate reflection of statements contained just in the headlines.
Paragraph (a) of the act states:
Employers are prohibited under the Act from utilizing other forms of criminal history in employment decisions if doing so would have an adverse impact on individuals on a basis enumerated in the Act that the employer cannot prove is job-related and consistent with business necessity or if the employee or applicant has demonstrated a less discriminatory alternative means of achieving the specific business necessity as effectively.
So as long as the employer can show that certain criminal convictions are job-related and consistent with business necessity, it may use the criminal convictions. These requirements, i.e. job related and business necessity, have been listed in EEOC regulations that were issued in April 2012.
We just want to highlight some parts of the act that deviate from what would be generally accepted norms of EEOC rules. For example Paragraph (b) of the act states:
Except if otherwise specifically permitted by law, employers are prohibited from considering the following types of criminal history, or seeking such history from the employee, applicant or a third party, when making employment decisions such as hiring, promotion, training, discipline, lay-off and termination:
- (b)(1) An arrest or detention that did not result in conviction (Labor Code section 432.7);
This does deviate from the guidelines established in EEOC Guidance issued in April 2012 that does allow an employer to consider arrest records if the arrest indicates behavior that would conflict with job-relatedness and business necessity. See V.B.2 of the EEOC regulations.
- (b)(5): A non-felony conviction for possession of marijuana that is two or more years old (Labor Code section 432.8).
Paragraph (e) of the law virtually mirrors the requirement contained in the April 2012 EEOC Guidelines regarding the steps that must be taken to prove job relatedness and business necessity and the steps necessary to perform the individualized assessment. Doing so will help insulate the employer from legal action.
(e) Establishing “Job-Related and Consistent with Business Necessity.”
(1) If the policy or practice of considering criminal convictions creates an adverse impact on applicants or employees on a basis enumerated in the Act, the burden shifts to the employer to establish that the policy is nonetheless justifiable because it is job-related and consistent with business necessity. The criminal conviction consideration policy or practice needs to bear a demonstrable relationship to successful performance on the job and in the workplace and measure the person’s fitness for the specific position(s), not merely to evaluate the person in the abstract. In order to establish job-relatedness and business necessity, any employer must demonstrate that the policy or practice is appropriately tailored, taking into account at least the following factors:
(A) The nature and gravity of the offense or conduct;
(B) The time that has passed since the offense or conduct and/or completion of the sentence; and
(C) The nature of the job held or sought.
An individualized assessment must involve notice to the adversely impacted employees or applicants (before any adverse action is taken) that they have been screened out because of a criminal conviction; a reasonable opportunity for the individuals to demonstrate that the exclusion should not be applied due to their particular circumstances; and consideration by the employer as to whether the additional information provided by the individuals or otherwise obtained by the employer warrants an exception to the exclusion and shows that the policy as applied to the employees or applicants is not job-related and consistent with business necessity.