Checking Criminal Histories Without Breaking the Law: June 2017 HR Bulletin

Checking Criminal Histories Without Breaking the Law

The Fair Employment and Housing Act (FEHA) and the Fair Credit Reporting Act impose significant limitations on the ability to check into a job applicant’s criminal history. An employer is not permitted to consider charges that were dismissed, sealed, or did not result in conviction. Most convictions more than seven years old cannot be considered, as well as certain marijuana convictions beyond two years old. If you use a third-party agency to conduct a background investigation, the applicant must provide written authorization, and must be given a copy of the report and the chance to dispute information contained in it.

Despite these existing rules, FEHA has recently been updated to state that an employer is prohibited from using an applicant’s criminal history when making a hiring decision if doing so would have an “adverse impact” on protected individuals, and the employer cannot prove that its standards are consistent with business necessity. Adverse impact is defined as a policy or practice that appears neutral, but has a substantially different rate of impact on protected classes. For example, a policy of never hiring a person with a felony conviction may adversely affect African-American or Hispanic men.

So are we saying you need to stop conducting background checks? Not by a long shot. A thorough, legally-compliant background investigation should be a consistent part of any employer’s hiring process. The key is to show the business necessity and job-relatedness of your policies. While you should not have a “bright line” policy that rejects applicants with criminal records, you can (and should) use convictions in your hiring decisions when you:

•      Take into account the nature and gravity of the offense,

•      Consider the time since the offense occurred, and

•      Connect the type of offense to the requirements of the job.

An employer must also provide applicants with notice if they are being screened out due to criminal convictions and allow reasonable opportunity for the applicant o explain why he/she should not be excluded from further consideration. If an applicant can provide evidence that a conviction record is inaccurate, you should not continue to use that record in your decision-making process.

This may seem extremely complicated, but the background investigation specialists at Sierra HR Partners are here to help. We can partner with you to determine which searches are job-related and analyze an applicant’s investigation results so you can make appropriate hiring decisions. We can also provide you with sample letters to notify applicants who are not hired based in part on a criminal record. If you have questions about your current screening process, contact us today.