New regulations have been finalized by California's Fair Employment and Housing Council (FEHC). The regulations further limit employers' ability to use criminal records when making employment decisions.
The regulations will be effective July 1, 2017.
Existing California law already restricts employer's use of criminal records. In addition, many California municipalities have enacted Ban the Box laws to ensure employers do not inquire about criminal history as part of the initial application process.
Records Prohibited from Consideration:
- Any non-felony convictions for possession of marijuana over two years old
Before an employer may take adverse action based on information found in a criminal history report, the employer must give the applicant notice they may be disqualified and provide the applicant a reasonable opportunity to dispute the findings of the report. This notice is only required when the information is obtained by a source other than the applicant or employee. 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.
Finally, the FEHC regulations prohibit employers from considering criminal history if doing so results in an adverse impact on individuals in a protected class, based on race, natural origin, religion, etc. The burden of proof of adverse impact relies on the applicant.