Publications

New Fair Employment and Housing Act Regulations Further Limit Consideration of Criminal History in Employment Decisions

3/27/2017 Articles

Considering criminal records when making employment decisions has long been the subject of scrutiny, and will soon be governed by new California regulations. On March 27, 2017, the California Office of Administrative Law approved several amendments to the Fair Employment and Housing Act (FEHA). They include adding a section (Section 11017.1) that effectively establishes the standard of proof for claims by applicants and employees that employment decisions based upon criminal records create an adverse impact on protected classes in violation of the FEHA. The amendments will take effect on July 1, 2017.

Section 11017.1 adopts the EEOC’s definition of “disparate impact” to define adverse impact. But unlike the EEOC guidance, it authorizes using “state-or national-level statistics” (rather than employer-specific recruiting records) to create an adverse impact presumption. An employer may rebut this presumption only by showing a “reason to expect a markedly different result” than an adverse impact, after accounting for factors specific to the area or job.

The new regulations also authorize an affirmative defense that the policy or practice of considering criminal history was “job-related and consistent with business necessity.” Under this defense, the employer must show that the practice took into account the nature of the offense screened, the length of time since the offense, and the type of position implicated. The employer’s practice must be tailored to the job and related to the person’s successful performance within the position.

The regulations permit employers to adopt a “bright line” exclusion of specified convictions from specific jobs or a policy of case-by-case assessment of such convictions. For a bright-line exclusion, Section 11017.1 will require that the policy differentiate among individuals posing different risks, and be limited to convictions that have a direct and specific bearing on the position and on the individual’s ability to perform the duties of the position. Moreover, considering criminal history information more than seven years old creates a rebuttable presumption of adverse impact.

When using a case-by-case or individualized assessment policy, the employer must provide notice to the individual excluded through the screening and a reasonable opportunity for a response, and consider additional information provided by the applicant.

Regardless of the type of policy, an applicant may rebut this defense by proving that a less discriminatory alternative policy or practice existed. Also, an employer that gathers information from a source other than the applicant or employee (e.g., a credit report), will have to provide the individual notice of the screening and an opportunity to respond before taking adverse action. If the individual shows that the information is factually inaccurate, the employer will be barred from using the information.

Lastly, a rebuttable defense to the adverse impact claim is available to employers that are required by federal or state laws to conduct criminal background screening.

Ultimately, the new regulations counsel employers to be proactive in defining and tailoring conviction screening policies to meet specific concerns. If employers use a case-by-case assessment policy, they should establish processes to ensure consistency and neutrality.

Firm Highlights

Publication

Nonprofit Basics: Federal Tax Filing Deadlines and Penalties

Welcome to  EO Radio Show – Your Nonprofit Legal Resource . This episode focuses on the importance of meeting the federal tax filing deadlines that apply to charitable organizations. Most charitable organizations that are...

Read More
News

Jim Day Named Among Daily Journal’s Top IP Lawyers in California

James Day Headshot
Read More
News

Legal experts say Google, Twitter and other tech companies dodged a bullet at the Supreme Court

Erik Olson spoke to Silicon Valley Business Journal for the article "Legal experts say Google, Twitter and other tech companies dodged a bullet at the Supreme Court." The Supreme Court avoided taking a stand...

Read More
Publication

Uncorking Accessibility: How Winery Websites Can Meet ADA Compliance Standards

Vanessa Ing and Kelsey Mollura discuss "Uncorking Accessibility: How Winery Websites Can Meet ADA Compliance Standards." The Americans with Disabilities Act (ADA) is a federal civil rights law that prohibits discrimination against people with disabilities...

Read More
Publication

Nonprofit Basics: Meeting Minutes Best Practices

Welcome to  EO Radio Show – Your Nonprofit Legal Resource . This episode focuses on documenting decisions made at meetings of a nonprofit organization's board of directors or trustees. While everyone who attends a...

Read More
News

Big Tech Breathes Sigh of Relief After Justices' Terror Rulings

Erik Olson spoke to Law360 for the article "Big Tech Breathes Sigh of Relief After Justices' Terror Rulings," covering the U.S. Supreme Court's decision not to review whether Section 230 insulates online platforms from...

Read More
Publication

Trends Guest Editorial: Wildfires and Wineries

Link to the article in Gradient's Trends  Spring 2023 newsletter. Recurring wildfires in the Napa and Sonoma Counties of California have created a set of niche problems for the surrounding wineries, on top of...

Read More
Event

Bisnow: San Francisco State of the Market

At Bisnow's San Francisco State of the Market event, Ashley Breakfield will moderate the panel "Revitalizing San Francisco: Reconfiguring the city for a hybrid world, reimagining downtown, and uplifting the economy." Click  here  for more information and to...

Read More
News

Farella Braun + Martel Earns Mansfield Certification Plus Status

Read More
Publication

Office-to-Housing Conversion: State and Local Efforts to Revitalize the Downtown

Originally published in The Registry . As office vacancies soar in traditional downtown areas like San Francisco’s Financial District, state and local officials are moving quickly to adopt incentives they hope will bring people...

Read More