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California Further Limits Use of Criminal Background Information

California’s Fair Employment and Housing Council (“FEHC”) has finalized new regulations further limiting employers’ ability to consider criminal history when making employment decisions. The new FEHC regulations, which are scheduled to take effect on July 1, 2017, largely follow the EEOC’s 2012 Enforcement Guidance.

In addition to the new FEHC regulations and existing California law, which already limits employers’ use of criminal records when making employment decisions, municipal “Ban the Box” ordinances further restrict employers’ use of such information. We previously described Los Angeles’ new Ban the Box Ordinance.  Additionally, employers must be mindful of their obligations under the Fair Credit Reporting Act (“FCRA”) when using criminal background reports provided by third party consumer reporting agencies.

Employers should note the following highlights from the FEHC regulations:

First, the regulations expand the list of types of criminal history employers are prohibited from considering to include any non-felony conviction for possession of marijuana if the conviction is more than two years in the past.

Second, before an employer may take adverse action against an applicant based on conviction history, an employer must give the applicant notice of the disqualifying conviction and provide a reasonable opportunity to present evidence that the conviction information is factually inaccurate. This notice is only required when the criminal information is obtained by a source other than the applicant or employee (e.g. through a credit report or internally generated search).  Thus, this notice is different from that required under the FCRA, which requires certain notices only if the employer takes adverse action against an applicant based on information contained in a third-party background check report.

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

Employers should review their employment applications and relevant policies to ensure compliance with not only the new FEHC regulations, but also the FCRA and applicable municipal “Ban the Box” ordinances.

© 2019 Proskauer Rose LLP.

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About this Author

Anthony J Oncidi, Employment Attorney, Proskauer Rose Law Firm
Partner

Anthony J. Oncidi heads the Labor & Employment Law Group in the Los Angeles office. Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection....

310-284-5690
Jeremy M. Mittman, Proskaeur Rose, Special Employment Counsel, Attorney, Unlawful Discrimination Lawyer,
Special Employment Counsel

Jeremy Mittman is a special employment counsel in the Labor & Employment Law Department. He represents management in litigation of employment-related matters, including claims of unlawful discrimination, harassment, and retaliation, as well as state and federal wage and hour claims. In addition to litigation, Jeremy counsels clients on compliance with employment-related laws and on developing, implementing and enforcing personnel policies and procedures. He has represented employers in a variety of industries, including financial services, security services, and various entertainment and media companies.

1.310.284.5634
Tracey L Silver, Litigation Attorney, Proskauer Law Firm
Associate

Tracey L. Silver is an associate in the Labor & Employment Department and a member of the firm’s Employment Litigation & Arbitration Group.

Prior to joining Proskauer, Tracey was a judicial extern for the Honorable Frances Rothschild, Presiding Justice of Division One of the Court of Appeal, Second Appellate District.

310-284-4535