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CA Issues Proposed Regulations Concerning Criminal History Inquiries
California's Fair Employment and Housing Council (FEHC) has issued proposed regulations which set forth pre-existing legally prohibited conduct on using or inquiring about various types of criminal history about an employee or applicant, when making employment decisions such as hiring, promotion, training, discipline and termination.
The types of criminal history about an employee or applicant include: 1) an arrest or detention that did not result in conviction (Labor Code section 432.7), 2) referral to or participation in a retrial or post-trial diversion program, 3) a conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated, or 4) a non-felony conviction for possession of marijuana that is two or more years old (Labor Code section 432.8).
In addition, the proposed regulations would prohibit employers from using other types of criminal history if doing so, 1) would have an adverse impact on individuals who are members of protected class under FEHA, i.e., race, gender, national origin); and 2) the employer can't demonstrate that the criminal history is job-related and consistent with business necessity.
The proposed regulations would appear to require employers taking adverse employment action, such as refusal to hire, to have to give the individual notice of the disqualifying conviction and an opportunity to dispute the accuracy of the information. Currently, this type of notice is referred to as a Pre-Adverse Action Notice.
These proposed regulations share common characteristics with the federal EEOC's guidance on "Consideration of Arrest and Conviction Records in Employment Decisions." (reference web link below for more information).
http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm