Just when you thought you were getting a handle on California’s complex employment screening regulations, new restrictions affecting the use of criminal records were recently introduced and approved by the California Fair Employment and Housing Counsel (FEHC).
The rationale behind revisions to California Code 11017 – and the introduction of Code 11017.1 – is to ensure hiring fairness among individuals in protected classes related to gender, race, and national origin. While employers can still consider an applicant’s criminal history during the screening process, to be in compliance as of July 1, 2017, you must make sure that history is job-related when making an adverse hiring decision.
The Burden of Proof
If a job applicant believes that your use of their criminal records as a reason not to hire them is discriminatory or irrelevant, the burden is on them to prove this. But if there’s enough evidence to suggest that an adverse impact has occurred, the burden shifts to you to prove otherwise.
This means that your decision to forego hiring a particular job candidate must serve a legitimate business purpose: it has to be pertinent to the job description in question, and relevant to the nature and timing of the applicant’s conviction.
Some justifiable examples of job-related relevancy in adverse hiring decisions might include:
- not hiring sex-offenders or violent criminals to work with children,
- not hiring convicted embezzlers or bank frauds to work in financial capacities, and
- not hiring those with DUI’s and related traffic offences to drive company vehicles
But to avoid non-compliance and keep courtroom confrontations at bay, it’s important to seek legal advice regarding your company’s hiring policies, and to follow one of two practices:
- Your organization must adopt an umbrella policy outlining a clearly defined rule or standard that distinguishes between potential hires that do, and do not, pose an unacceptable level of risk.
According to the FEHC, this means that “the convictions being used to disqualify, or otherwise adversely impact the status of the employee or applicant, have a direct and specific negative bearing on the person’s ability to perform the duties or responsibilities necessarily related to the employment position.”
- Your organization must evaluate each adverse hiring decision on an individual basis before it’s finalized.
This involves advising the applicant that they were “screened out” as the result of a prior criminal conviction, giving them the chance to show why that exclusion shouldn’t apply to their particular circumstances, and giving due consideration to any new information that might warrant an exception in terms of the applicant’s conviction NOT being job-related or “consistent with business necessity.”
In either of these cases, the law is clear: you must give an impacted job candidate sufficient notice of the conviction that’s figuring in your decision not to hire them, so they can check and protest any factual inaccuracies. If the applicant can show that an error’s been made, you can no longer take that criminal record into account as part of your decision to employ them.
Hiring the wrong employee negatively impacts your company’s time, productivity, morale, and revenue – but it can also pose a serious safety concern. While there are very few job positions that wouldn’t benefit from some form of employment screening, the best way to protect your rights and resources where criminal background checks are concerned is to stay on top of current hiring regulations.