New regulations proposed for criminal background checks in employment
March 25, 2016
New proposed rules may delay when county employers can ask job applicants about their criminal history. The Fair Employment and Housing Council is proposing new regulations that would overhaul how criminal history is considered in employment decisions. The full text of the proposed regulations is available here and the Initial Statement of Reasons is available here.
The proposed regulations would result in significant changes. Of key interest to counties, state and local agencies would be prohibited from asking for any information related to criminal background until the applicant has met minimum qualifications. Additionally, if considering criminal history would create an adverse impact for applicants or employees, the burden of establishing that the policy is justifiable, job-related, and consistent with business necessity falls on the employer.
Other changes include listing out the prohibitions on using criminal history that are already included in law, clarifying that local entities may enact even stricter regulations because FEHA is a minimum standard, less discriminatory alternatives, time limitations on what may be considered, and types of conviction disqualification practices or policies that would be disallowed.
The proposed rulemaking will be discussed at a hearing on April 7 in Berkeley, which will also be webcast (more information available here). CSAC will continue to monitor the proceedings and keep counties apprised of any developments. The Fair Employment and Housing Council is part of the Department of Fair Employment and Housing.