The legal landscape concerning how employers utilize background screening is constantly evolving. With each new law, it’s vital that employers adjust their practices to remain legally compliant; otherwise they risk lawsuits or other legal action.
One example of this, is a set of new regulations for employers in California. These new regulations are meant to assist job seekers with criminal histories find employment. They are part of the broader “ban the box” movement that has gained traction in states and municipalities across the United States.
While these new regulations only specifically affect California employers, other employers outside the state should take heed. Just like with “ban the box” laws, popular provisions may spread to other states as well. Understanding the trends in this law should help you anticipate legislative changes in your state.
Below is a brief summary of the new regulations California employers will face:
- Employers are no longer allowed to consider any non-felony convictions for marijuana possession if conviction is more than two (2) years old.
- If employer obtains criminal background information from a source other than candidate, they must provide the applicant notice of the disqualifying information prior to taking adverse action. The employer must also provide the applicant an opportunity to present evidence that would correct any inaccuracies in the report. The Fair Credit Reporting Act (FCRA) only mandates the employer notify the applicant if adverse action is taken.
- An employer may not consider criminal background information, if doing so would result in an adverse impact on a candidate within a protected class. The employer must demonstrate that its hiring policy is “job related and consistent with business necessity”. It also must take into account the nature and gravity of the offense, the amount of time since the offense and/or completion of sentence, and the nature of the job sought.
Here is some additional information on these new regulations:
New California Regulations Limit Employers’ Use of Criminal Background Checks
It is incumbent on employers to audit their applications and hiring procedures to be in compliance with these new regulations in California, or any “ban the box” type legislation. Remain proactive with your policies and work with legal professionals when necessary.
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