California Fair Employment and Housing Council Rule on the "Consideration of Criminal History in Employment Decisions"

The California Fair Employment and Housing Council (FEHC) has finalized the "Consideration of Criminal History in Employment Decisions" regulation (the "Rule"). The Rule, which is scheduled to take effect on July 1, 2017, will impact employers and consumer reporting agencies. You can review the Rule on the Council's website

The Rule expands items employers are prohibited from considering. Existing prohibitions include:

  • an arrest or detention that did not result in 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 law;
  • arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while a person was subject to the process and jurisdiction of a juvenile court law;
  • any non-felony conviction for possession of marijuana that is older than two years;

The Rule also states that if an employer is considering adverse action, prior to taking final adverse action (i.e. during pre-adverse action) the "employer must give the impacted individual notice of the disqualifying conviction and a reasonable opportunity to present evidence that the information is factually inaccurate." This requires the employer to list the specific criminal conviction(s) that was the disqualifying item(s), differing from the FCRA requirement. This notice is mandated regardless of whether the employer has a bright line assessment, in which there is a specific policy stating that a certain conviction history automatically disqualifies all candidates, or an individualized assessment, in which the employer considers the criminal background of a candidate in concert with all other aspects of the candidate. 

As noted above, the final rule is expected to take effect on July 1. In the meantime, FEHC has scheduled a hearing on March 30 on proposed regulations related to use of criminal background checks in the context of tenant screening.