Question: I recently found out that one of my employees has been arrested and charged with a felony. My business caters to a lot of families and I do not want a felon on my staff, but one of my managers told me it is illegal to fire someone for a criminal conviction. Is that true?
Answer: Making employment decisions, including hiring, promotion, training, discipline, layoff and termination, based on criminal history presents a legal challenge for California employers. California recently finalized a new set of regulations governing the use of criminal history in making employment decisions. The new regulations are effective July 1, 2017.
The new regulations state that it is unlawful for employers to seek or consider the following criminal history when making employment decisions:
• An arrest or detention that did not result in conviction;
• Referral to or participation in a pretrial or post-trial diversion program;
• A conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated;
• An juvenile court arrest, detention, or other court disposition; and
• A non-felony conviction for possession of marijuana that is two or more years old.
Additionally, California courts have ruled that if an employee or applicant suffers an adverse employment action because of the employer’s use of criminal history, the employee or applicant may allege that an employer’s criminal background policy is discriminatory because it has an adverse impact on individuals with a protected characteristic, such as race or national origin. For example, in cases filed with the Equal Employment Opportunity Commission, discrimination is alleged based on statistics allegedly showing that people from a certain race, gender, or national origin are far more likely to be convicted of certain crimes and therefore, although an employer’s criminal background policy may be fair and neutral on its face, in practice it has a discriminatory impact.
If a “disparate impact” showing is made, the employer must prove that any criminal history information used was job-related and consistent with a business necessity. An employer practice that takes into account a conviction that is seven or more years old is presumed to not be sufficiently tailored to meet a job-related/consistent with business necessity defense. The burden is on the employer to rebut this presumption.
In adopting a compliant policy, employers should consider;
• Whether criminal background checks are beneficial to your business;
• Whether any statutory exceptions apply that require or permit the use of criminal history in making decisions about employment (i.e. law enforcement, healthcare, transportation);
• Crafting a narrowly tailored policy that demonstrates how the policy (i) is job-related, (ii) is consistent with business necessity, and (iii) includes an individualized assessment of employees and applicants;
• Eliminating any “blanket policies” that exclude applicants or employees due to any criminal convictions on their records;
• The nature and gravity of the offense;
• The time that has passed since the offense; and
• The nature of the job.
If the employer uses a third-party background check company, the employer must follow the requirements of the Fair Credit Reporting Act and the California Investigative Consumer Reporting Agencies Act.
The new regulations contain additional restrictions, and certain municipalities have their own more stringent limitations. Before taking employment action based on criminal history it is prudent to obtain advice from legal counsel.