Legal Updates in California and New York
Below are important legal updates pertaining to California and New York:
California: California has published the final text of a new regulation titled “Consideration of Criminal History in Employment Decisions.” It is slated to take effect July 1, 2017. We believe the following are the most notable aspects of the regulation:
The regulation will likely energize the plaintiff’s bar to assert large “adverse impact” cases in California. In short, it makes it easier for plaintiffs to establish that minorities are adversely affected by the use of criminal history information. And it makes it more difficult for defendants to rebut “adverse impact” allegations. This represents a significant change in the California legal landscape.
Employers will effectively be “forced” to adopt a decision-making process along the lines of what the EEOC recommends (i.e., evaluate the nature of the crime, the nature of the job, the time that has passed since the crime, and conduct an “individualized assessment). A failure to do so will typically doom the employer in an “adverse impact” case.
Employers will need to specifically identify the conviction that is prompting the possible adverse action in the pre-adverse action letter. In other words, an employer must do more than simply pass along the background screening report at the pre-adverse action stage. California’s change in this regard is consistent with a growing trend at the municipal and state level to require employers to provide more specific information at the adverse action stage.
New York: The highest court in New York made it easier for plaintiff’s attorneys to accuse background screening companies of discrimination under New York’s discrimination law, which is called the “Human Rights Law.” In Griffin v. Sirva Inc., the Court of Appeals determined that entities other than employers could be held liable for discrimination in New York under an “aiding and abetting” theory. The Court specifically included “out of state” entities among those that could “aid and abet.”
OPENonline is a trusted source for comprehensive background screenings. For more information, visit our website. Above information provided by DeWitt, Ross & Stevens S.C. Law firm.