The DFEH’s Foray into Criminal Background Checks

The DFEH has issued a proposed regulation pertaining to an employer’s use of criminal history of employment decisions.  The rules are most restrictive on state and local agencies.  These entities cannot conduct a criminal background check, or ask the applicant about his/her conviction history, unless they first determines that the applicant meets the minimum employment qualifications stated in the notice for the position. 

 

All employers will be prohibited, under this proposed regulation, from using criminal records in employment decisions if doing so would have an adverse disparate impact on individuals on a basis protected by FEHA, and the employer cannot demonstrate that consideration of the criminal records are job-related and consistent with business necessity.  However, if there is a less discriminatory alternative means of achieving the specific business necessity as effectively, an applicant might still successful challenge the employer’s practice or reviewing criminal records.    

 

What does this all mean?  If the use of criminal records adversely affects a group of individuals protected by FEHA, then the consideration of the records is prohibited.  As we know from EEOC materials on the issue, the most common examples would be the adverse effect on Hispanic or African-American males, who are incarcerated at a higher rate than other racial or ethnic groups. 

 

To overcome any possible challenge to the company’s practice of considering criminal records, the employer must show that reviewing criminal records “bear[s] a demonstrable relationship to successful performance on the job and in the workplace and measure[s] the person’s fitness for the specific job.”  The employer must also take into consideration that the policy is “appropriately tailored” taking into account the nature and gravity of the offense, the time that has passed since the offense or completion of sentence, and the nature of the job held. 

 

Demonstrating that the company has appropriately tailored its practice of conducting a criminal background inquiry, the employer must make an individualized assessment of the circumstances or qualifications of the applicants, or be able to demonstrate that any “across the board” disqualification distinguishes between applicants that do and do not pose an unacceptable level of risk and that the convictions being used to disqualify have a direct and specific negative bearing on the person’s ability to perform the duties of the job. 

 

There is much more to this proposed regulation.  You can access it here:  http://www.dfeh.ca.gov/res/docs/FEHC/FEHC2016Jan/AttachB-CriminalHistory.pdf

 

I recommend that employers conduct background checks on all applicants prior to hire.  These background checks should include a review of criminal records.  Under this proposed regulation, employers who conduct these inquiries must go through a process of justifying the criminal records review.  I recommend that you evaluate the justification for the criminal record review for each position.  Identify the types of crimes that might disqualify a person from serving in any particular position.  Consider whether a certain criminal act may or may not disqualify a person from the position, and the reasons why.  Document this type of information before conducting the criminal records inquiry. 

 

Most companies that perform background checks won’t work with you on developing these policies.  Therefore, you may wish to consider using a company that will help you analyze your policies and make them consistent with laws and regulations such as this proposed DFEH regulation.  Sierra HR Partners (www.sierrahr.com) is one of those companies that will work with its clients to analyze their practices and draft policies that help avoid legal attacks.