California Legal Rules and Regulations
The new FEHC regulations expand the types of criminal history employers are prohibited from considering to include:
1. Any non-felony conviction for possession of marijuana if the conviction is over two years old.
2. Employers are also prohibited from using records of arrest or detention that did not result in a conviction;
3. Nor can employers use information from convictions that have been sealed, expunged or dismissed.
4. Employers may not use records of an applicant’s participation in pre-trial or post-trial diversion program.
Furthermore, before an employer may take an unfavorable or “adverse” or action against a candidate based on a conviction history, the employer is required to give the applicant notice of the disqualifying conviction and also provide a reasonable opportunity for the candidate to dispute and present evidence that the information is factually inaccurate. This requirement is more stringent than that of the Fair Credit Reporting Act, as it requires the employer to list specific, disqualifying criminal conviction(s) in its notice to a candidate prior to taking an adverse action.
This notice is only required when the information is obtained from a source other than the candidate. This notice is different from the required notices under the Fair Credit Reporting Act. The FCRA requires certain notices only if the employer takes adverse action against a candidate based on information found in a third-party background-check report.
Moreover, the FEHC regulations also prohibit an employer from considering an applicant’s criminal history in employment decisions if doing so will result in adverse impact on individuals within a protected class (race, national origin, religion, etc.).
The candidate would bear the burden of proving that an employer’s criminal background screening policy has an adverse impact on a protected class.
The EEOC does not specifically prohibit employers from using criminal records but sets forth pracitces that employers should follow for applicants and employees with protected characteristics under the Civil Rights Act of 1964. Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. The EEOC Guidance also recommends that employers “Ban the Box” by removing the question from job applications which asks applicants about criminal records, and not basing hiring decisions on arrest records. Employers should conduct “individualized assessments” before making adverse employment decisions against an applicant or an employee. The FEHC regulations also prohibit California employers from considering criminal records of applicants and employees in employment decisions that will result in an adverse impact on individuals in a protected class under Title VII. However, applicants and employees bear the burden of proving an employer’s criminal background check policy has an adverse impact on a protected class. The FEHC regulations shift the burden of proof to employers to show their background check policy is job-related and consistent with business necessity if applicants and employees establish an adverse impact.
Employers must do this by taking into account the nature and gravity of the criminal record, time passed since the offense and/or completion of sentence, and the nature of the job held or sought. Employers must conduct an “individualized assessment” before making employment decisions based on criminal records.
They must give applicants and employees notice they have criminal records that may warrant adverse action and time to explain why that that action should not be taken. Employers then must decide whether any new information is or is not job-related or consistent with business necessity. Before employers may take adverse actions based on criminal records, the FEHC regulations require that applicants and employees be given notice – only if the information is obtained from a source other than them, like background check firms or employers, and must be given the chance to show the records are inaccurate. If the criminal records are inaccurate, then employers will not be permitted to consider those records.
Lastly, the FEHC regulations also recognize some employers may be subject to federal or state laws or regulations that prohibit individuals with certain criminal records from holding certain positions, require a background screening process before employing applicants in such positions, or factor into eligibility for occupational licenses and can constitute a defense to adverse impact claims under California law. Suggested Practices for Employers
Below are listed some suggestions to comply with these laws governing an individual’s criminal records discovered in the pre-employment background check process.
Job application forms, policies and practices that automatically disqualify all applicants for all positions because of a criminal record should be eliminated.
An applicant’s criminal history should only be asked about when you can demonstrate that it is relevant to a specific job.
Optional requests for criminal history information should only be included when truly job-related and consistent with business necessity.
All notices and other requirements in the regulations must also be complied with.
hiring decisions must be made without regard to age, race, gender, familial status or any other characteristic protected by law.
Questions about religion, pregnacy and other personal or physical matters are of course prohibited
Limit questions related to the details of performing the essential duties and requirements of the position.
Documentation of background check reports and hiring decision criteria may help you defend your criminal background-check process.
California Use Of Social Media In Hiring :
California: Prohibits employers from requiring or requesting employees or applicants to disclose their username or password for their social media account, and also prohibits employers from requiring the employee or applicant access his or her social media account in the presence of the employer.
However, employers may make a reasonable request that an employee divulge personal social media account information, as is relevant to an investigation of employee misconduct (2012). – California employment law is broader in scope than the federal FCRA. It covers third-party employment screeners, as does the FCRA. But it also covers employers who conduct background checks themselves, something the FCRA omits. California Employment law was amended in 2001 to give job applicants as well as current employees greater rights to see the results of background checks.
You also now have a better chance to find out about inaccurate or incomplete information. (CA Civil Code §1786)
Employees and job applicants in California have all the rights of the FCRA and more, but there are differences. Two of the most obvious differences are the meaning of some terms and the notice requirements that starts the employment screening process. Almost all of the information collected in an employment background check comes from public records. Examples of non-public record information might include reference checks with past employers and a verification of your education credentials.
You are not entitled to get information an employer receives by checking your references. If a third party conducts the investigation employment references are also exempted from the report that the individual is entitled to receive. The employer only has to give you a copy of any public records obtained in checking your background. This could include documents that pertain to an arrest (if it results in a conviction), indictment, conviction, civil judicial action, tax lien, or outstanding judgment. Such records can be obtained if an employer goes directly to the public source or uses an Internet site that collects public records and sells the information. California employment screening law restricts vendor reporting of criminal conviction information to seven years. Consumer Credit Reporting Agencies Act Civil Code Sections 1785.1 – 1785.3
Last Updated: Wednesday, January 09, 2008
SECTION 1786.10-1786.40 For complete California code: California Reporting Limitations1786.18. (a) Except as authorized under subdivision (b), an investigative consumer reporting agency may not make or furnish any investigative consumer report containing any of the following items of information:
(1) Bankruptcies that, from the date of adjudication, antedate the report by more than 10 years.
(2) Suits that, from the date of filing, and satisfied judgments that, from the date of entry, antedate the report by more than seven years.
(3) Unsatisfied judgments that, from the date of entry, antedate the report by more than seven years.
(4) Unlawful detainer actions where the defendant was the prevailing party or where the action is resolved by settlement agreement.
(5) Paid tax liens that, from the date of payment, antedate the report by more than seven years.
(6) Accounts placed for collection or charged to profit and loss that antedate the report by more than seven years.
(7) Records of arrest, indictment, information, misdemeanor complaint, or conviction of a crime that, from the date of disposition, release, or parole, antedate the report by more than seven years.
These items of information shall no longer be reported if at any time it is learned that, in the case of a conviction, a full pardon has been granted or, in the case of an arrest, indictment, information, or misdemeanor complaint, a conviction did not result; except that records of arrest, indictment, information, or misdemeanor complaints may be reported pending pronouncement of judgment on the particular subject matter of those records.
(8) Any other adverse information that antedates the report by more than seven years.
By statute, California is a “no-arrest” state when it comes to employment screening. According to California Labor code section 432.7: (a) No employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction, or information concerning a referral to, and participation in, any pretrial or post trial diversion program, nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring, promotion, termination, or any apprenticeship training program or any other training program leading to employment, any record of arrest or detention that did not result in conviction, or any record regarding a referral to, and participation in, any pretrial or post trial diversion program. As used in this section, a conviction shall include a plea, verdict, or finding of guilt regardless of whether sentence is imposed by the court.
Nothing in this section shall prevent an employer from asking an employee or applicant for employment about an arrest for which the employee or applicant is out on bail or on his or her own recognizance pending trial.433. Any person violating this article is guilty of a misdemeanor. (Emphasis added)Consequently, before any consideration of the use of the FBI database by employers, it must be recognized that the decision is not primarily a criminal justice or security issue, but also involves human resources considerations, labor law and civil rights law that historically have been matters of state determination, as well as Federal law such as the EEOC rules and the FCRA.
Please note that Federal employment screening law mandates background checks for employees who are engaged in particular industries. The Office of Inspector General of the Department of Health and Human Services maintains a list of individuals who are excluded from participation in any of its federally-funded healthcare programs. Exclusions are due to convictions for program-related fraud and patient abuse, licensing board actions and default on health education assistance loans. Therefore, employers in affected industries should check the OIG Exclusion list before hiring employees who might work in such programs. The FACIS® program is also very important when screening medical personnel. Click Here for more information on FACIS®
California drug free workplace employment drug screening
Governor’s Policy Council on Drug and Alcohol Abuse
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Sacramento, CA 95814-4037
Tel: 916/ 445-1943
Fax: 916/ 323-5873