Effective July 1, 2017 California’s Department of Fair Employment and Housing (DFEH) issued new regulations on employers’ use of criminal background information in hiring decisions. The new law prohibits employers from using or seeking criminal history information that has an adverse impact on a protected class, unless the information sought is job related. Further, employers are required to provide written notice to the applicant explaining a decision to not hire based on criminal history. These regulations are legally binding on employers and employees can sue for violations of the law.
The employee has the initial burden of proving that the use of his or her criminal history had an adverse impact on his or her employment. Once the employee makes such an allegation, the employer must follow a process and demonstrate that the use of criminal history information was “appropriately tailored” to the job. The employer may do this by conducting an individualized assessment of the circumstances and qualifications of an applicant or employee that was excluded because of the criminal background check. The employer should consider the nature and gravity of the offense, the time passed since the offence or completion of the sentence and the and the nature of the job held or sought.
If the employer decides to revoke an applicant’s job offer due to the criminal offense, the employer must provide the applicant with written notice explaining the decision. The applicant must then be given a chance to respond before any adverse action is taken.
Still, an individual can bring a discrimination claim if they can show that there is a less discriminatory and more effective alternative means of achieving the business necessity.
There are exceptions when an employer must comply with federal or state law prohibiting employment of individuals with certain criminal records from holding certain jobs. Also, there are criminal background check mandates for certain positions, such as peace officers.
If your business performs criminal background checks on applicants, or would like to implement a criminal background check policy, please contact our accomplished employment law attorneys at Schneiders & Associates for assistance.