New California Background Check Laws 2017 – Ban the Box

by Guest Contributor on July 3, 2017

Employer’s Bottom Line:

In light of the new criminal background check laws effective July 1, 2017, we highly recommend revisiting no-hire and disciplinary/termination policies and practices based on criminal convictions to ensure compliance, to exclude procedures to make employment decisions based on the following criteria:

  • Arrests or detentions that did not result in conviction;
  • Referrals to, or participation in, a pre-trial or post-trial diversion program;
  • A conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to law (e.g., juvenile offense records sealed pursuant to Welfare and Institutions Code section 389 and Penal Code sections 851.7 or 1203.45);
  • Arrests, detentions, processings, diversions, supervisions, adjudications, or court dispositions governed by a juvenile court; and
  • Non-felony convictions for possession of marijuana that are two or more years old.

We also recommend that if an employment decision is made based on other criminal history criteria different from the above, that the employer conduct individualized assessments of the circumstances in each case, including the following procedures:

  • First, provide a notice to the candidate (before any adverse action is taken) that they have been screened out because of a conviction;
  • Next, permit a reasonable opportunity for the candidate to demonstrate that the exclusion should not be applied due to their particular circumstances; and
  • Then give consideration as to whether the additional information provided by the individuals or otherwise obtained by the employer warrants an exception to the exclusion and shows that the policy as applied to the employees or applicants is not job-related and consistent with business necessity.

 

Executive Summary:

The California Fair Employment & Housing Council (“FEHC”) issued proposed regulations last year that restrict using an applicant and/or an employee’s criminal history in hiring and other employment decisions.[1] Effective July 1, 2017, employers in California are prohibited from utilizing an employee or applicant’s criminal history in employment decisions if doing so would have an “adverse impact” on individuals (who fall within a protected class, such as sex, gender, race, national origin, etc.) on a basis that the employer cannot prove is job-related and consistent with business necessity, or if the employee or applicant has demonstrated a less discriminatory alternative means of achieving the specific business necessity as effectively.  22 Cal. Regs. Code § 11017.1(a).

Specifically, in California, employers are not permitted to consider or seek the following types of criminal history records and information:

  • Arrests or detentions that did not result in conviction;
  • Referrals to, or participation in, a pre-trial or post-trial diversion program;
  • A conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to law (e.g., juvenile offense records sealed pursuant to Welfare and Institutions Code section 389 and Penal Code sections 851.7 or 1203.45);
  • Arrests, detentions, processings, diversions, supervisions, adjudications, or court dispositions governed by a juvenile court; and
  • Non-felony convictions for possession of marijuana that are two or more years old.

However, an employer may consider other criminal conviction history to make employment decisions, but only so long as it does not create an “adverse impact” and an applicant/employee. To do this, employers must demonstrate that the policy or practice measures a person’s fitness for specific job positions (not merely to evaluate the person in the abstract), including consideration of the following:

  1. The nature and gravity of the offense;
  2. The time that has passed since the offense or completion of the sentence; and
  3. The nature of the specific job at issue.

An employer may also demonstrate that a policy or practice of considering conviction history in employment decisions is “appropriately tailored” to the job for which it is used as an evaluation factor requires that an employer either:

  1. Demonstrate that any “bright-line” conviction disqualification or consideration (that is, a disqualification that does not consider individualized circumstances) can properly distinguish between applicants or employees that do and do not pose an unacceptable level of risk and that the convictions being used to disqualify, or otherwise adversely impact the status of the employee or applicant, have a direct and specific negative bearing on the person’s ability to perform the duties or responsibilities necessarily related to the employment position. Bright-line conviction disqualification or consideration policies or practices that include conviction related-information that is seven or more years old are subject to a rebuttable presumption that they are not sufficiently tailored to meet the job-related and consistent with business necessity affirmative defense (except if justified by subsection (f) below); OR
  2. Conduct an “individualized assessment” of the circumstances and/or qualifications of the applicants or employees excluded by the conviction screen. In order to ensure compliance, the individualized assessment must involve the following:
    1. Notice to the candidate (before any adverse action is taken) that they have been screened out because of a conviction;
    2. A reasonable opportunity for the candidate to demonstrate that the exclusion should not be applied due to their particular circumstances; and
    3. Consideration by the employer as to whether the additional information provided by the individuals or otherwise obtained by the employer warrants an exception to the exclusion and shows that the policy as applied to the employees or applicants is not job-related and consistent with business necessity.

Moreover, the new law requires that regardless of whether an employer utilizes a bright line policy or conducts individualized assessments, before an employer may take an adverse action such as declining to hire, discharging, laying off, or declining to promote an adversely impacted individual based on conviction history obtained by a source other than the applicant or employee (e.g. through a credit report or internally generated research), the employer must give the impacted individual notice of the disqualifying conviction and a reasonable opportunity to present evidence that the information is factually inaccurate. If the applicant or employee establishes that the record is factually inaccurate, then that record cannot be considered in the employment decision.

Further, in conducting the individualized assessment, employers must also be sure to abide by the Equal Employment Opportunity Commission’s (“EEOC”) Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 (2012), and the regulations of the EEOC generally.  While the EEOC does not prohibit employers from conducting criminal background checks complete, it advises that employers as to “best practices,” including: (1) removing from employment applications the question that asks job applicants to self-disclose their criminal record; (2) not making an employment decision based solely on the fact of an arrest record; and (3) conducting an “individualized assessment” before rejecting an applicant or terminating an employee because of a conviction.  Not surprisingly, the FEHC’s new law includes similar requirements:

Additional Criminal History Limitations, Irrespective of Adverse Impact:

  • State or local agency employers are prohibited from asking applicants for employment to disclose information concerning their conviction history, including on an employment application, until the employer has determined that the applicant meets the minimum employment qualifications as stated in the notice for the position (Labor Code section 432.9);
  • Employers may also be subject to local laws or city ordinances that provide additional limitations. For example, in addition to the criminal history outlined in subsection (b), San Francisco employers are prohibited from considering a conviction or any other determination or adjudication in the juvenile justice system; offenses other than a felony or misdemeanor, such as an infraction (other than driving record infractions if driving is more than a de minimis element of the job position); and convictions that are more than 7seven years old (unless the position being considered supervises minors, or dependent adults, or persons 65 years or older) (Article 49, San Francisco Police Code).
  • Employers that obtain investigative consumer reports such as background checks are also subject to the requirements of the Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.) and the California Investigative Consumer Reporting Agencies Act (Civil Code section 1786 et seq.).

Unfortunately, even if an employer demonstrates that its policy or practice of considering conviction history is job-related and consistent with business necessity, adversely impacted employees or applicants may still prevail under the Act if they can demonstrate that there is a less discriminatory policy or practice that serves the employer’s goals as effectively as the challenged policy or practice, such as a more narrowly targeted list of convictions or another form of inquiry that evaluates job qualification or risk as accurately without significantly increasing the cost or burden on the employer.

In addition, the California state Assembly is considering a new bill, AB 1008, to essentially “ban the box” on employment applications, including prohibition of the following:

  1. Including on any application for employment any question that seeks the disclosure of an applicant’s criminal history;
  2. Inquiring into or considering the conviction history of the applicant, including any inquiry about conviction history on any employment application, until after the applicant has received a conditional offer;
  3. In conducting a conviction history background check in connection with any application for employment, to consider, distribute, or disseminate information on any of the following:
    1. Arrest not followed by conviction;
    2. Referral to or participation in a pretrial or posttrial diversion program;
    3. Convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law;
    4. Misdemeanor convictions for which no jail sentence can be imposed, or infractions;
    5. Misdemeanor convictions for which three years have passed since the date of conviction , excluding any period of incarceration, or felony convictions for which seven years have passed since the date of conviction, excluding any period of incarceration;
  4. Interfering with, restraining, or denying the exercise of, or the attempt to exercise, any right provided under this section.

California AB 1008; proposed Cal. Gov. Code § 12952 (see https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB1008)

Similarly, AB 1008 provides that an employer may conduct an “individualized assessment” into whether an applicant’s conviction history has a “direct and adverse relationship” with the specific duties or obligations of the job for which the applicant is being considered, which may be used to justify denying the applicant the job position. In making such an assessment, the employer must consider the following:

  1. The nature and gravity of the offense or conduct;
  2. The time that has passed since the offense or conduct and completion of the sentence; and
  3. The nature of the job held or sought.

It must also be noted that certain cities within California, including San Francisco and Los Angeles, have also recently enacted their own “ban the box” laws.[2]

 

 

Authors: Daniel Chammas and Alexandria M. Witte, FordHarrison

WSACTIVELLP:9235671.1

[1] Please see FordHarrison’s relevant Legal Alert on this matter, at http://www.fordharrison.com/californias-new-criminal-background-check-regulations-to-go-into-effect-july-1-2017.

[2] Please see FordHarrison’s legal alert on Los Angeles’ relevant law, at http://www.fordharrison.com/city-of-los-angeles-passes-ban-the-box-law.

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Guest ContributorNew California Background Check Laws 2017 – Ban the Box