Effective July 1, 2017, new regulations have limited California employers’ rights to use an applicant’s criminal background history in making employment decisions. Specifically, the regulations now require employers to demonstrate that most criminal history information sought and used in its employment decisions is job-related and consistent with a business necessity.
According to the regulations, an employer must justify this policy or practice by demonstrating that it bears “a demonstrable relationship to successful performance on the job and in the workplace and measure[s] 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.
The regulations provide two ways for an employer to meet these requirements:
• Conduct an individualized assessment of the applicant or employee; or
• Demonstrate that any “bright-line” disqualification policy properly distinguishes those who do and do not pose an unacceptable level of risk.
Regardless of whether the employer received information about an individual’s criminal background through a credit report or internally generated research, the employer must provide the applicant with:
• notice, and
• a reasonable opportunity to present evidence that the information is factually inaccurate or the exclusion should not be applied due to their particular circumstances.
Finally, there must be consideration by the employer as to whether the information provided warrants an exception to their decision.
At CEA we recommend that you no longer ask about criminal history on your job applications, unless you can demonstrate a reason to do so.
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