By Leonard Brazil 

Effective April 1, 2016, California Regulation 11017.1 was amended to further limit an employer’s policy to consider criminal convictions in rejecting a job applicant or take adverse employment action against an existing employee.  The amended regulation arose out of the California Legislature’s concern that reliance on criminal convictions has had a disproportionate and adverse impact on individuals on the basis of their gender, race, national origin or other protected classification.

Certain Criminal History Excluded from Consideration:  The following types of criminal history cannot be considered by an employer or requested of an applicant or employee:

  • An arrest or detention that did not result in a conviction;
  • Referral to or participation in a pre-trial or post-trial diversion program;
  • A conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to applicable law; and
  • A non-felony conviction for possession of marijuana that is two or more years old.

Limitations on Employer Policies Regarding Other Criminal Convictions:  If an employer has a policy to rely on other criminal convictions in deciding whether to hire an applicant or take adverse employment action against an employee (e.g., deny a promotion), the company must be able to demonstrate the policy is job related, consistent with business necessity and appropriately tailored.  The amended regulation states that to satisfy this criteria, the policy must take into account at least the following factors:

  • The nature and gravity of the offense or conduct;
  • The time that has passed since the offense or conduct occurred and/or the completion of the sentence; and
  • The nature of the job held or sought.

The amended regulation indicates that if an employer has a “bright-line,” across the board policy that a criminal conviction disqualifies an applicant or employee, the employer must satisfy a very high standard to demonstrate that such a rigid policy is appropriately tailored  Alternatively, an employer who conducts an individualized assessment of the qualifications of the applicant or employee and the circumstances surrounding the criminal conviction in deciding whether to rely upon the conviction will typically find it easier to demonstrate that the policy is appropriately tailored.

For example, if a person applies to be a delivery driver, a criminal conviction for theft a year ago may be an improper basis to deny employment because it is not job-related, consistent with business necessity or appropriately tailored.  However, if the criminal conviction were vehicular manslaughter for driving under the influence, denial of employment would likely be deemed to be job-related, consistent with business necessity and appropriately tailored.  Yet, if that conviction were 20 years old, the decision to not hire the applicant may not be appropriately tailored because of the passage of time from the conviction to the application for employment.

Employer Notice of Reliance on Criminal Conviction:  If an employer refuses to hire an applicant or takes adverse employment action against an employee based on a conviction obtained through a third-party background report or employer generated internal report, the employer must notify the person of the disqualifying conviction and provide a reasonable opportunity for the individual to present evidence that the criminal conviction information is inaccurate.  If it is established that the employer has inaccurate information, the criminal history cannot be considered in the employment decision.

What You Should Do

  1. Ensure that your criminal conviction policy is (i) job-related, (ii) consistent with business necessity and (iii) appropriately tailored.
  1. Review your job application form to ensure it does not inquire about:

(a)        An arrest not leading to a conviction;

(b)        Referral to or participation in a pre-trial or post-trial diversion program;

(c)        A conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to applicable law; or

(d)        A non-felony conviction for possession of marijuana that is two or more years old.

An application that states “Have you ever been convicted of a felony?” might be deemed a violation of the amended regulation because it would cause an applicant to answer “yes” even if the conviction had been expunged.

  1. Educate those involved in the hiring process regarding the new limitations and requirements related to criminal convictions.

Thank you for joining us on ClarkTalk!  We look forward to seeing you again on this forum.  Please note that the views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  You should certainly consult legal counsel of your choice when considering this or any other employment issue.  If you wish to consult with the author of this post or another attorney at Clark & Trevithick, please contact Debbie Petito dpetito@clarktrev.com or Leonard Brazil lbrazil@clarktrev.com by email at or telephonically by calling the author at (213) 629-5700.

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