Kingsley & Kingsley recently published an update on employment bills currently making their way through the California Legislature–one post on AB 1008, and another covering various labor law bills. While we focused on state labor laws, we also highlighted regulations with effective dates this calendar year. Most notable is California's Department of Fair Employment and Housing (DFEH) recently enacted regulations that impose additional burdens on employers' use of criminal background checks in employment decisions.
When: Effective July 1, 2017.
Who: Applicable to all California employers.
What: The new regulations prohibit California employers from using an applicant's/employee's criminal background history in making employment decisions. Specifically, the regulations require that, for any criminal background check policy that creates an adverse impact on a protected class (e.g. race, national origin or gender), an employer must justify its use of a policy as job-related and consistent with business necessity. To justify the policy, an employer demonstrate that its policy or practice bears “a demonstrable relationship to successful performance on the job and in the workplace and measures the person's fitness for the specific position, not merely to evaluate the person in the abstract,” and that the policy or practice is “appropriately tailored” to the job. This can be done in two ways–(1) conduct an individualized assessment of the applicant or employee; or (2) demonstrate that any “bright-line” disqualification policy properly distinguishes those who do and do not pose an unacceptable level of risk. Either method requires the employer to provide the impacted applicant/employee with notice and a reasonable opportunity to present evidence that the information is factually inaccurate prior to moving forward with the employment decision.
Less Discriminatory Alternatives
An employer may still be found liable under the regulations if the applicant/employee can show that there is a less discriminatory alternative available to achieve the employer's goals as effectively as the challenged policy or practice, such as a more narrowly targeted list of convictions that render the applicant/employee disqualified, or another form of inquiry that evaluates job qualification or risk as accurately without significantly increasing the cost or burden on the employer.
Compliance with Federal or State Laws and Regulations
DFEH recognizes that employers may have to abide by federal or state laws, regulations, or licensing requirements that permit or require the consideration of criminal history. Examples cited in the regulations include “government agencies employing individuals as peace officers, employers employing individuals at health facilities where they will have regular access to patients, and employers employing individuals at health facilities or pharmacies where they will have access to medication or controlled substances. Therefore, the new regulations clearly state that compliance with federal or state laws or regulations that mandate particular criminal history screening processes or require employees or applicants to possess specific occupational licenses constitutes a rebuttable defense to an adverse impact claim under the Act.
California Employment Laws
Even though the state legislature is currently considering AB 1008, all employers should be mindful of DFEH's new regulations by ensuring their employment policies and procedures ensure compliance. If you have questions about California's employment laws or regulations, don't hesitate to contact Kingsley & Kingsley to speak with one of our experienced labor lawyers.