The California Fair Employment and Housing Council (FEHC) has finalized its “Consideration of Criminal History in Employment Decisions” regulation, which will go into effect on July 1, 2017. During the proposed legislation’s public comment period, the National Association of Private Background Screeners (NAPBS) submitted comments raising concerns regarding adverse notification, business necessity and the use of less-discriminatory alternatives. In subsequent reporting, the association indicated that the FEHC did not successfully address its concerns.

Substantive changes to the regulation include:

  • Non-felony marijuana infractions older than two years are now prohibited from consideration;
  • Employers with bright-line (little to no room for interpretation) policies regarding criminal convictions must show that an across-the-board disqualification has a “direct and specific negative bearing” on an individual’s fitness for a specific position.
  • Employers must use less discriminatory alternatives if possible, but per NAPBS those alternatives are not clear.
  • Employers considering adverse action “must give the impacted individual notice of the disqualifying conviction and a reasonable opportunity to present evidence that the information is factually inaccurate.”

This last 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. Per the NAPBS, after reviewing its comments, the FEHC clarified rather than removed the notice requirement, which the association argued conflicted with other similar laws and regulations.

The final regulation is expansive, and the NAPBS—and Barada Associates—encourage employers that hire in California to review the final rule, in its entirety, on the Council’s website.