New regs limit use of criminal history in hiring decisions

Many employers are choosing to hire third parties to conduct background checks on applicants who have been offered employment. In addition, depending on the nature of the position and essential job functions, employers are requesting reports about an applicant's driving and criminal record.

As of July 1, 2017, under the Fair Employment and Housing Council (FEHC), there are additional legal limits on employers obtaining and using this type of information. Also, employers must be mindful of their obligations under the Fair Credit Reporting Act and state laws. In California, employers must comply with laws concerning consumer reports, criminal background checks and driver's record information.

The new FEHC regulations expand the types of criminal history employers are prohibited from considering to include any non-felony conviction for possession of marijuana if the conviction is over two years old.

Furthermore, before an employer may take an “adverse” or unfavorable action against a candidate based on conviction history, the employer must give the candidate notice of the disqualifying conviction and provide reasonable opportunity for the candidate to present evidence that the information is factually inaccurate. This notice is only required when the information is obtained from a source other than the candidate. This notice is different from the required notices under the Fair Credit Reporting Act. The FCRA requires certain notices only if the employer takes adverse action against a candidate based on information found in a third-party background-check report.

CDA members can find additional notice requirements in the “Disclosure and Authorization to Obtain Investigative Consumer Report” resource in the Practice Support section of CDA’s website.

Finally, the FEHC regulations prohibit an employer from considering criminal history in employment decisions if doing so will result in adverse impact on individuals within a protected class (race, national origin, religion, etc.). The candidate would bear the burden of proving that an employer’s criminal background screening policy has an adverse impact on a protected class.

Best Practices for Employers

In light of the ever-changing laws regarding the use of individuals' criminal histories in the candidate selection process, employers may want to consider adopting the following practices:

  • Eliminate any blanket prohibitions in job application forms, policies and practices that automatically disqualify all applicants for all positions because of a criminal record.
  • Ask about criminal history only when you can demonstrate that it is relevant to a specific job. Include the optional request for criminal history information only when truly job-related and consistent with business necessity. 
  • Comply with the notice and other requirements in the regulations.
  • Make hiring decisions without regard to age, race, gender, familial status or any other characteristic protected by law. You cannot ask a potential employee certain questions, such as about pregnancy or religious affiliation. Keep questions related to the details of performing the essential duties and requirements of the position.
  • Thoroughly document and maintain detailed confidential reports on candidates, background-check results and whether the candidate was hired. Doing so may help you defend your criminal background-check process.

Find employment-related resources in the Practice Support section of CDA’s website.

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