As of July 1, California employers must eliminate policies that automatically disqualify applicants who have a criminal record. Instead, employers must review convictions on a case-by-case basis.
This includes considering factors such as how much time has passed since the conviction occurred, asking for details about the offense(s) and following guidelines created by the Equal Employment Opportunity Commission
. Employers should assess each candidate individually and be able to show that their screening policy is comprehensive enough to determine whether or not an individual could be considered an "unacceptable risk" based on the type of job to which they are applying. Best practice is for employers to have a comprehensive written screening policy that shows they are following applicable laws and maintaining consistent screening practices.
California job seekers who are part of any FEHA-protected class (based on race, gender, origin, age, etc) now have the right to claim an employer could have implemented a "less discriminatory policy" that still suits their business needs. The onus to provide proof is on the applicant, but that could be accomplished by providing state or national statistics that show there is a disparity between the number of convictions for people in protected versus non-protected classes. Applicants also have the right to file a complaint with the Department of Fair Employment and Housing (DFEH). The DFEH can then conduct their own investigation or authorize the individual to file a private lawsuit against the employer (only California employees can file private suits, but employees outside of the state can present claims to the EEOC). Depending on the outcome, an employer could be told to: pay both back and future pay; hire, reinstate or promote an individual; change internal polices; pay punitive damages, attorney fees and other expenses; provide training and/or reasonable accommodations to the individual.
The Society For Human Resource Management offers best practice tips for California employers:
- Document your screening policies to show they are relevant to the positions for which you are hiring, consistent with business needs and that they allow for individual assessments of applicants and current employees.
- Do not use "blanket policies" that automatically exclude individuals for having a criminal conviction.
- Thoroughly train all personnel involved in the hiring process on how to assess criminal convictions.
These laws apply to private and public California employers with at least five employees.