EMPLOYMENT BACKGROUND CHECKS
California Employment Background Checks
All employment background check services including employment drug screening and pre-employment criminal record background checks are available in California.
As of July 1, 2017, A California law titled the Fair Employment and Housing Council (FEHC), imposes additional legal limits on employers obtaining and using this type of information. In addition.
California employers must also be guided by their obligations under the FCRA Fair Credit Reporting Act and other state and city laws such as those enacted by San Francisco and Los Angeles.
Be sure to have a signed release from the applicant before ordering a background check or driving record.
The FCRA requires that the release be on a distinct and separate piece of paper and may not be part of an employment application or any other form.
For a summary of FCRA requirements please the FCRA publication:
“Background checks: What Employers Need To Know.” Please Click Here
The new FEHC regulations expand the types of criminal history employers are prohibited from considering to include:
1. Any non-felony conviction for possession of marijuana if the conviction is over two years old.
2. Employers are also prohibited from using records of arrest or detention that did not result in a conviction;
3. Nor can employers use information from convictions that have been sealed, expunged or dismissed.
4. Employers may not use records of an applicant’s participation in pre-trial or post-trial diversion program.
Furthermore, before an employer may take an unfavorable or “adverse” or action against a candidate based on a conviction history, the employer is required to give the applicant notice of the disqualifying conviction and also provide a reasonable opportunity for the candidate to dispute and present evidence that the information is factually inaccurate.
This requirement is more stringent than that of the Fair Credit Reporting Act, as it requires the employer to list specific, disqualifying criminal conviction(s) in its notice to a candidate prior to taking an adverse action.
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.
Moreover, the FEHC regulations also prohibit an employer from considering an applicant’s 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.
The EEOC does not specifically prohibit employers from using criminal records but sets forth practices that employers should follow for applicants and employees with protected characteristics under the Civil Rights Act of 1964. Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion.
The EEOC Guidance also recommends that employers “Ban the Box”
By removing the question from job applications which asks applicants about criminal records, and not basing hiring decisions on arrest records.
Employers should conduct “individualized assessments” before making adverse employment decisions against an applicant or an employee.
The FEHC regulations also prohibit California employers from considering criminal records of applicants and employees in employment decisions that will result in an adverse impact on individuals in a protected class under Title VII.
However, applicants and employees bear the burden of proving an employer’s criminal background check policy has an adverse impact on a protected class.
The FEHC regulations shift the burden of proof to employers to show their background check policy is job-related and consistent with business necessity if applicants and employees establish an adverse impact.
Employers must do this by taking into account the nature and gravity of the criminal record, time passed since the offense and/or completion of sentence, and the nature of the job held or sought.
Employers must conduct an “individualized assessment” before making employment decisions based on criminal records.
They must give applicants and employees notice they have criminal records that may warrant adverse action and time to explain why that that action should not be taken.
Employers then must decide whether any new information is or is not job-related or consistent with business necessity.
Before employers may take adverse actions based on criminal records, the FEHC regulations require that applicants and employees be given notice – only if the information is obtained from a source other than them like background check firms or employers – and the chance to show the records are inaccurate.
| f the criminal records are inaccurate, then employers will not be permitted to consider those records.
Lastly, the FEHC regulations also recognize some employers may be subject to federal or state laws or regulations that prohibit individuals with certain criminal records from holding certain positions, require a background screening process before employing applicants in such positions, or factor into eligibility for occupational licenses and can constitute a defense to adverse impact claims under California law.
Suggested Practices for Employers
Below are listed some suggestions to comply with these laws governing an individual’s criminal records discovered in the pre-employment background check process.
Job application forms, policies and practices that automatically disqualify all applicants for all positions because of a criminal record should be eliminated.
An applicant’s criminal history should only be asked about when you can demonstrate that it is relevant to a specific job.
Optional requests for criminal history information should only be included when truly job-related and consistent with business necessity.
All notices and other requirements in the regulations must also be complied with.
hiring decisions must be made without regard to age, race, gender, familial status or any other characteristic protected by law.
Questions about religion, pregnacy and other personal or physical matters are of course prohibited
Limit questions related to the details of performing the essential duties and requirements of the position.
Documentation of background check reports and hiring decision criteria may help you defend your criminal background-check process.