On April 1, 2016, the California Fair Employment and Housing Council (FEHC) proposed the amendment of the Fair Employment and Housing Act (FEHA) to include provisions relating to the use of criminal history while making employment decisions. The new regulations would elaborate on how employers could be in violation of the FEHA by using background checks, which could then result in several lawsuits being filed by employees against their employers.
As per California law, employers are prohibited from considering criminal history in several specific cases. However, under the new regulations, employers will not be able to use criminal history if doing so would adversely impact a FEHA-protected class, such as race, gender, religion or disability, unless they can justify that the policy is appropriately tailored to the job, and is in line with the needs and requirements of the business.
An employee may still challenge the policy, and file a discrimination claim, as per the new regulations. The employee would also have to present that there is an alternative, less discriminatory and more effective means of achieving the same business needs. In that case, the employers would then have to prove a measurable relationship between the success of the job and the individual’s fitness. They would also have to consider (1) the nature and severity of the wrongdoing; (2) the time that has lapsed since the offense or completion of the judicial sentence; and (3) the nature of the work.
Furthermore, employers will also need to carry out individualized assessments of the employees, and provide an opportunity to the employee to justify why their conviction should not prevent them from taking this employment. Additionally, employers will also have to demonstrate that any “bright-line” disqualification policy appropriately differentiates those who do and do not pose an intolerable level of risk.
Prior to taking any employment decision, the Fair Credit Reporting Act states that employees must provide the impacted applicant a notice of the disqualifying conviction if the information were obtained from sources other than the applicant himself, and a fair opportunity to present any evidence that the information obtained by the employer is factually incorrect. If the applicant or employee establishes that the record is factually inaccurate, in which case the criminal record can no longer be factored into the employment decision taken by the employer.
Over the past few years, it has become increasingly easy for employers to find out information on potential applicants without a formal background check. This has been possible through social media and general Internet searches that offer abundant information. However, as mentioned above, any information obtained from sources not provided by the applicant himself need to be fully disclosed to them.
There is an exemption to this regulation that will be favorable to employers. Under federal or state law, employers are explicitly prohibited from hiring individuals with certain specific convictions without a thorough background check. In those cases, employers can rely on the laws as a defense mechanisms against the potential lawsuits from employees.
Due to the constant revisions and amendments in laws concerning background checks, it is advisable for employers to adopt certain practices that will be in their best interests. Firstly, analyze if background checks are in fact beneficial to the company. Next, devise an appropriately tailored policy that illustrates how background checks are in line with the company policy and its business needs. Last, provide training to recruitment teams with respect to the sourcing and use of information pertaining to criminal convictions.