On July 1, several new regulations went into effect for employers in California. It may be time to re-examine your company’s employment screening practices that involve using criminal records.
The state’s Department of Fair Employment and Housing (DEHF) finalized new regulations that impose further limits on an employer’s ability to consider criminal history during hiring or employment decisions.
The goal of these regulations is to make it easier for applicants in a protected class, such as age, race or national origin, to demonstrate that a company’s screening policy, specifically its inappropriate application of criminal history information during hiring decisions, creates an adverse impact on protected groups.
Under the new rules, employers must:
- Show that the criminal history they’re seeking or reviewing is job-related and consistent with a business necessity. Companies need to ensure that their policies or practices are clear – that recruiters or hiring managers can only consider criminal records that are relevant to the role or business necessity.
- Avoid considering any misdemeanor conviction for marijuana possession more than two years old. Some previous exceptions have been removed.
- Consider these factors when making an adverse decision that’s based on criminal history: the nature and gravity of the offense or conduct; the amount of time that has passed since the offense or completion of the sentence; and the nature of the job held or sought.
- Notify candidates of the specific criminal record that may prevent them from the job and give them an opportunity to correct any inaccuracies or explain the circumstance.
“Most importantly, the new regulations created a rebuttable presumption that an organization’s bright-line policy or practice automatically disqualifying all applicant with certain types of past convictions are not sufficiently tailored to the specific circumstances of the job,” states risk consultancy e-Place.
If a job candidate can prove disparate impact, then the onus is on the employer to prove how information applied from background checks during employment decisions are job-related and consistent with business necessity.
To do so, employers must complete two steps:
- Defer to the EEOC’s “nature/time/nature” test as described in its 2012 guidelines on using criminal records in employment decisions. Sometimes referred to as a “targeted screen” or “Green factors”, these guidelines involve considering the nature of the offense, when it occurred and the nature of the position.
- Your company will need to conduct an individualized assessment or prove that its screening policy can differentiate between candidates who either pose an acceptable risk or unacceptable risk. Likewise, you must also show that the applicant’s conviction directly interferes with an applicant’s ability to perform the job. An obvious example is a job candidate with a criminal history of child abuse who applies for a janitorial position at an elementary school or daycare center.
Update your screening policy now to ensure you comply with these new regulations. Legal actions are costly, but more importantly you want to ensure you have a fair and unbiased hiring process and screening policy.