Back in 2012, I blogged about the federal EEOC adopting strict guidelines that limited an employer’s ability to make hiring decisions based on an applicant’s criminal history. You can find my 2012 blog post here.
In the aftermath of the EEOC issuing its new guidelines, many local jurisdictions began debating whether to adopt “ban the box” ordinances. These ordinances, the San Francisco version of which I blogged about here and here, typically require employers to remove all criminal history questions from job applications. Instead, the employer is required to wait until a later time — such as after an interview — to ask criminal history questions.
Recently, California’s state version of the EEOC, the Fair Employment and Housing Council (“FEHC”), approved final statewide regulations that closely mirror the EEOC’s 2012 federal regulations. These new statewide regulations become effective on July 1, 2017.
As a result of these new statewide regulations, California employers are now prohibited from asking about or considering the following criminal history:
(1) any non-felony conviction for the possession of marijuana that is more than two years old;
(2) an arrest or a detention that did not result in a conviction;
(3) referral to or participation in any pre-trial or post-trial diversion program;
(4) an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while a person was subject to the process and jurisdiction of a juvenile court; and
(5) convictions that have been sealed, judicially dismissed, expunged, or statutorily eradicated by law.
In addition, the new FEHC regulations require employers to provide an applicant or employee with a notice that he/she was not hired (or suffered some other adverse employment action) due to criminal history information. The employer also provide that employee with an opportunity to demonstrate that the criminal history information considered by the company was inaccurate.
The new FEHC regulations also allow an applicant to bring a claim for discrimination if the employer’s use of criminal history information results in an “adverse impact” on those in protected classes (e.g., race, ethnicity, national origin, gender).
You can find the final approved regulations here.