California employers face new criminal history screening restrictions
California has enacted new regulations restricting most state-based employers from using criminal records in hiring and other employment decisions.
The California Fair Employment & Housing Council (FEHC) – the state agency charged with enforcing California’s civil rights laws - adopted regulations that forbid companies from considering a candidate's criminal history in cases where a criminal background check would negatively impact legally protected classes. An employer must at least demonstrate that its policy or practice has a "business necessity" related to the proposed position.
Upon going into effect on July 1, the new rules clarify when the use of criminal records is in violation of Fair Employment and Housing Act (FEHA) strictures, and are largely based on guidance set forth by the Equal Employment Opportunity Commission (EEOC) in its April 2012 "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964."
The 2012 EEOC guidance outlines best practices that organizations should follow for applicants protected under Title VII. The act prohibits employers from discriminating against hires on the basis of sex, race, color, national origin and religion.
California employers are now prohibited from considering or seeking information about certain types of criminal records, including:
*An arrest or detention that did not result in a conviction
*Certain marijuana infractions and misdemeanor convictions older than two years
*Participation in any pre-trial or post-trial diversion program
*Arrest, detention, processing, diversion, supervision, adjudication, or court disposition while a person was in juvenile court
*Convictions sealed, judicially dismissed, expunged or eradicated by law
Even if an employer can make a demonstration of business necessity in its use of criminal records, an applicant can challenge any action that leads to disqualification from a job. If the candidate proves the record is inaccurate, the record can no longer be considered in the employment decision.
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