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The California Fair Employment and Housing Council is considering a new rule that limits the use of criminal history in pre-employment background checks. The rule would prohibit employers from using criminal history when considering applicants for employment, except under narrow conditions. The Council would put the rule into effect under its authority to enforce the California Fair Employment and Housing Act (FEHA).

Any Criminal History Check Must Be Job-Related and a Business Necessity

The proposed rule would prohibit the use of criminal history by employers (public or private) in pre-employment background checks. It’s important to know that there are a number of narrow exceptions to this rule. If an employer can show that the use of criminal history in a pre-employment background check is job-related and “consistent with business necessity,” then the employer can usually use that criminal history information in making hiring decisions. The California Code of Regulations defines “job-related” as “sufficiently related to an essential function of the job in question to warrant its use.” It defines “business necessity” as “an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business.”

Under New Rule, Some Criminal History Is Never Allowed in Background Checks

Even if an employer can show such a business necessity, it still cannot use criminal history in its background checks if there is a more carefully tailored policy that would create less discrimination against applicants with criminal history while still protecting the business’ interest. Additionally, there are some forms of criminal history information that the rule would always prohibit employers from using, even if they could demonstrate that the information was relevant to the applicant’s ability to perform his or her job. These are:

  • An arrest or detention that did not result in conviction
  • Referral to or participation in a pretrial or post-trial diversion program
  • A conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to law, and
  • A non-felony conviction for possession of marijuana that is two or more years old.

Employers Must Justify Policy Against Hiring Applicants with Criminal History

In a case where the employer has a policy against hiring applicants with criminal convictions, the burden on the employer to justify the policy is fairly strict under the new DFEH rule:

“The criminal conviction consideration policy or practice needs to bear a demonstrable relationship to successful performance on the job and in the workplace and measure the person’s fitness for the specific job, not merely to evaluate the person in the abstract.”

The rule sets out three factors that the employer’s policy must take into account:

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

In other words, blanket policies against hiring applicants with criminal convictions will not pass the test.

California Pre-Employment Background Check Laws: For Further Reading

  • California Laws on Employer Use of Arrest and Conviction Records via NOLO.com
  • Fair Employment & Housing Council Consideration of Criminal History in Employment Decisions Regulations via California Department of Fair Employment and Housing
  • What are the California rules regarding employer use of an outside agency to perform background checks, and how do they differ from federal law? via SHRM.org

If you feel a California employer is violating your rights under current pre-employment background check laws, contact the expert employment law attorneys at Hennig Ruiz to discuss your case today.