Accuchex Blog

Proposed CA Labor Laws: Criminal History And Employment

Posted by Tristan Ruhland on Mar 29, 2016 9:30:00 AM

proposed-ca-labor-laws-criminal-history-and-employment-postThere is now the possibility of new CA labor laws limiting an employers ability to consider criminal background information when hiring.

Recently, the California Fair Employment and Housing Council (FEHC) issued a series of proposed regulations that would limit the use of criminal history information in employment decisions.

Criminal Records, Employers and CA Labor Law

The proposed amendments recap state laws that already prohibit employers from utilizing certain criminal background information when they are making employment decisions regarding hiring, promotion, training, discipline, or termination or other.

In addition to reiterating existing prohibitions on the use of criminal history information in California, the proposed amendments also recommend a new regulation that would prohibit employers from using other types criminal history information if:

It would have an adverse impact on individuals who are members of a protected class (e.g., race, gender, national origin); and

The employer can’t demonstrate that the criminal history is job-related and consistent with business necessity.

Additional Compliance Requirements Would Be Added

Before making a decision, such as refusal to hire, because of an applicant's criminal record, the employer would have to give that applicant notice of the disqualifying conviction and an opportunity to dispute the accuracy of the information.

According to a post by Payroll Masters:

Under the proposal, bright-line conviction disqualification policies that don’t contain an individualized assessment of the facts and that include conviction-related information that is seven or more years old will be presumed to not be sufficiently tailored to meet a job-related/consistent with business necessity defense. The burden will be on the employer to rebut this presumption.

Even if the employer can show that a criminal history inquiry is job-related/consistent with business necessity, an individual can still bring a discrimination claim if he/she can show that there is a less discriminatory effective alternative means of achieving the business necessity.

These proposed regulations are not altogether surprising given the recent trend toward limiting when any criminal history information can be required.

In 2012, the Equal Employment Opportunity Commission (EEOC) issued an employer guide entitled “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions.” The guide explains how an employer’s improper use of an applicant’s or employee's criminal history when making employment decisions could violate existing prohibitions against employment discrimination.

Local Regulations Add to CA Labor Laws

A number of cities have implemented their own rules that employers need to be aware of, in addition to existing (and proposed) CA labor laws. For example, the city of San Francisco’s Fair Chance Ordinance, requires covered employers to follow strict rules regarding the use of arrest and conviction records and related information.

Under San Francisco's regulations employers can’t ask about criminal history on a job application or require job applicants to disclose criminal history information on the job application, including any type of check box indicating criminal convictions. In addition, the city of Los Angeles is also proposing their own “ban the box” ordinance.

Accuchex is Here to Help California Employers and HR Managers

If your organization would like to learn more about its obligations, or acquire resources to deal with these types of situations, Accuchex recently partnered with HR Solutions Partners to offer its customers the most up-to-date and professional human resources management solutions available. To learn more about the different levels of Human Resource Management services available, please follow this link.

If you have questions regarding California labor law requirements, or other HR issues and practices, let us help you in managing your HR needs, payroll processes, and staying on top of compliance demands. To learn more about labor law issues click on the button below to download our free guidebook, or call Accuchex Payroll Management Services at 877-422-2824.

Free Guide: California Labor Law – What You Need To Know

Topics: ca labor laws, recruiting and hiring, HR compliance, employee lawsuits, discrimination

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