California Consideration of Criminal History in Employment Decisions Regulations

California Consideration of Criminal History in Employment Decisions Regulations


New regulations issued by the California Department of Fair Housing and Employment became effective July 1, 2017 specifying that the pre-adverse action notice now required must identify the criminal record(s) that may result in the adverse action. (However, the regulations do not state exactly how this identification is to be done.) 

This signals an attitude/priority shift in the Department toward the issue of reintegration of those with criminal records into the work place. (Approximately 10% of the United States population has a criminal record and in some areas of the inner cities that percentage jumps to 75%.)

The regulations outline the very difficult issue of adverse action discrimination – the process that results in unintentional discrimination. The employer must be able to justify that a hiring policy is necessary for the job, not just the employer’s preference. Any alternatives must be considered.

The courts to date have been sympathetic to empoyer decisions so long as employers do not have a “no conviction rule” and the convictions selected by the employer seem to have a relationship to the job. 

The regulations also acknowledge that some laws, state and federal, prohibit the hiring of people with certain convictions.

Take Away: Every hiring criteria must be justified as job related. Because some hiring criteria will adversely affect minority groups, in the adverse action analysis the employer should ask whether there are less discriminatory alternatives that will achieve the same results. In other words: Hiring criteria → adverse impact → necessary for job → any alternatives → decision.



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