Why it matters

vct on individuals in protected categories based on gender, race or national origin. The analysis includes considering factors such as the job position, the geography of the applicant pool, and the type of convictions, the DFEH explained. In addition, the proposed regs would require that employers provide notice to an applicant or employee before taking an adverse action due to a disqualifying conviction and provide a reasonable opportunity to present evidence that the information is factually inaccurate. The DFEH proposal is currently open for public comment.

Detailed discussion

The use of criminal histories in employment decisions has been the target of lawsuits and legislation across the country, from the trend of enacting "ban the box" laws to multiple cases filed by the Equal Employment Opportunity Commission (EEOC) challenging the practices of specific employers in this area.

The DFEH waded into the debate recently with the release of proposed regulations. The "Consideration of Criminal History in Employment Decisions Regulations" would prohibit four types of criminal history from consideration by employers when making decisions such as hiring, promotion, training, discipline, and termination:

"(1) An arrest or detention that did not result in conviction; (2) Referral to or participation in a pretrial or post-trial diversion program; (3) A conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to law and (4) A non-felony conviction for possession of marijuana that is two or more years old."

Employers may face other limitations from local or city ordinances, the DFEH noted. (San Francisco, for example, prohibits consideration of offenses other than a felony or misdemeanor and convictions more than seven years old.) And state and local agency employers should remember that they may not ask for any criminal history information until a determination is made that the applicant meets the minimum employment qualifications stated in the notice for the position.

On top of all of these restrictions, the DFEH added concerns about the adverse impact on certain protected groups. "Depending on factors such as the type of convictions considered, the job position, and the geographic bounds of the applicant pool, consideration of other forms of criminal convictions, not enumerated above, may have an adverse impact on individuals on a basis protected by the [Fair Employment and Housing Act (FEHA)], including, but not limited to, gender, race, and national origin."

The proposed regulations establish a burden-shifting framework in such cases, with an adversely affected applicant or employee bearing the burden of demonstrating that the employer's policy of considering criminal convictions has an adverse impact. The burden would then shift to the employer to establish that the policy applied was "nonetheless justifiable" because it was job-related and consistent with business necessity.

This showing by the employer requires "a demonstrable relationship to successful performance on the job and in the workplace" as well as a measurement of the individual's fitness for the specific job, "not merely to evaluate the person in the abstract." The criminal conviction policy must be appropriately tailored and take into account at least three factors, the DFEH said: the nature and gravity of the offense or conduct, the time that has passed since the offense or conduct and/or completion of the sentence, and the nature of the job held or sought.

Employers using bright-line or across-the-board conviction disqualifications must be able to demonstrate that the convictions being used to disqualify have a "direct and specific negative bearing on the person's ability to perform the duties or responsibilities necessarily related to the employment position" or that the employer conducted an individualized assessment of the circumstances or qualifications of the applicants or employees excluded by the conviction screen.

Bright-line policies that do not feature an individualized assessment are subject to a rebuttable presumption that they are not sufficiently tailored to meet the business necessity affirmative defense, the DFEH explained.

If an employer demonstrates that its policy or practice of considering conviction history is job-related and consistent with business necessity, an impacted individual may still prevail under the FEHA by demonstrating that a less discriminatory policy or practice still serves the employer's goals as effectively as the challenged policy or practice without significantly increasing the cost or burden on the employer. As an example of this, the proposed regulations suggested a more narrowly targeted list of convictions or another form of inquiry by the employer.

If an employer elects to take an adverse action based on conviction history, the impacted individual must be given notice of the disqualifying conviction and "a reasonable opportunity" to present evidence that the information is factually inaccurate.

The proposed regulations include an exception for compliance with specific state and federal laws and regulations that prohibit employment of individuals with certain criminal records from holding particular positions or occupations or which mandate a screening process.

Comments will be accepted on the proposal until April 7.

To read the DFEH's proposed regulations, click here.