When employers discover a problem on an employee background check, it’s important to tread carefully, especially if the discovery contributes to the decision not to extend an offer of employment. The last thing an employer wants to deal with is allegations of discrimination. Now, employers based in California may need to tread with extra caution following the proposal of new regulations by the California Fair Employment and Housing Council (FEHC).
The regulations are yet to be passed, but David Abella and Sarah Nichols of Ogletree Deakins in San Francisco write that if adopted, the new regulations would make it easier for job applicants and employees to sue employers for Fair Employment and Housing Act (FEHA) violations. In essence, the proposed regulations will define and clarify the rules about using a person’s criminal history in employment and housing decisions, and these regulations, combined with the growing adoption of “ban-the-box” legislation in California, will offer additional protections for candidates with criminal histories.
Treading Carefully
While the FEHA protects individuals from employment discrimination based on the protected categories of race, gender, religion, or disability, it does not protect individuals based on their status as an “ex-offender.” The proposed regulations, however, would create paths toward filing discrimination claims under the FEHA if an employer uses an individual’s criminal history to adversely impact a hiring decision and that individual is part of a protected class.
Now, although these new regulations are yet to be adopted, California-based employers as well as employers across the nation would be wise to keep a few best practices in mind going forward.
- First, depending on the nature of your business, consider whether/how criminal background checks will or won’t specifically benefit your business.
- Next, compose a policy that is explicit in how the policy is 1) job-related, 2) essential to the operation of business, and 3) inclusive of individualized assessment of employees and job candidates.
- Next, do away with “blanket policies.” These are policies that generally excludes candidates or employed due explicitly to criminal convictions on their records.
- Finally, organize HR trainings for anyone making hiring decisions to instruct on the proper collection and usage of criminal conviction histories.
These best practices offer protection for both the company, employees, and prospective employees.
