The California Fair Employment and Housing Council (FEHC) has finalized new regulations that impose significant limitations on an employer’s ability to consider a person’s criminal history when making hiring, promotion, or other employment decisions.  These rules go into effect on July 1, 2017.

Criminal History Prohibitions

California employers are already prevented from considering the following kinds of criminal records and information:

  1. Arrests or detentions that did not result in conviction
  2. Convictions that have been judicially sealed, dismissed, expunged, or otherwise eliminated
  3. Criminal proceedings governed by juvenile court
  4. Referrals to and participation in pre-trial and post-trial diversion programs
  5. Non-felony convictions more than 2 years old for marijuana possession

With these new rules, employers are also prohibited from considering all other forms of criminal history records and information, when doing so would create an adverse impact on individuals who are within a protected class (i.e., gender, national origin, race, etc.), unless the employer can show that the consideration of criminal records is job-related and consistent with business necessity.  This must be a position-specific consideration, and must take into consideration (a) the nature and gravity of the offense; (b) the time that has passed since the offense was committed or the sentence was completed; and (c) the nature of the job.

Employers must also maintain policies and procedures that allow for an “individualized assessment” of the applicants or employees excluded by a criminal records screening.  Notice must be given to impacted individuals before the decision to not hire or not promote is made, and those individuals must be given a reasonable opportunity to demonstrate that they should not be negatively impacted by the criminal records screen.  Employers must also ensure that any additional information and a request for an exception to the criminal exclusion is properly considered.

“Bright line” rules – which state that certain positions warrant having a person with no criminal background – are still permitted, so long as the employer can show that it is directly related to the position duties and that the policy distinguishes between people with a high level of risk and a low level of risk.

San Francisco and Los Angeles
San Francisco and Los Angeles already have Fair Chance Ordinances in place that have their own rules about considering criminal history and background for applicants and employees.  These new rules do not displace or erase those regulations, and are “in addition to” the rules for these jurisdictions.

The Take-Away
California is moving closer and closer to a “ban the box” system, where employers will have significant limitations placed upon them when it comes to asking about and considering a criminal history.

If you do want to ask about and consider this information, you will need to have written policies in place that are compliant with the new FEHC rules, and will need to train manager or those involved in hiring and promotion decisions about the new rules and their impact.  These should be created or reviewed by an attorney.