Background Check Legal Updates Starting July 1, 2017 in California
There are several new regulations that are to take place in just one week, so we wanted to give you the heads up so you can adjust your policies if needed to reduce your risk of a lawsuit. This applies to public AND private employers with more than 5 employees.
You can view the full text of the California Department of Fair Employment Housing update to get more details, but here is the general overview:
- Notifications: You must let your applicant know what specific criminal record you are using to make an adverse employment decision. In other words, if you’re rejected the applicant because of a criminal record you have to specify the record you found and give them a chance to dispute inaccuracies. You can use A Good Employee’s pre-adverse decision letter, but we suggest attaching a print out of the criminal record.
- Marijuana: You cannot consider a misdemeanor conviction for marijuana possession that occurred more than two years ago.
- Protected class rights: A member of a protected class can present national and state criminal justice statistics as prima facie evidence of adverse impact. This puts the burden on the employer to prove that they did not cause adverse impact on a protected group. Basically, the employer would need to demonstrate that they do not use blanket policies and instead conduct an individualized assessment that considers the direct risk the criminal record poses to the job position and the amount of time it’s been since the crime as well as efforts of the person to rehabilitate.
- Least discriminatory policy must be used: Even if you prove you conducted an individualized assessment described above, the job candidate can still show that you could have a used a different policy that would have been less discriminatory.
This applies only to employees working in California. If a complaint is made to the California Department of Fair Employment Housing (DFEH), then the DFEH can issue a right to sue letter to the employee or the DFEH will investigate the complaint and prosecute the case in coordination with the U.S. Equal Employment Opportunity Commission (EEOC).
If it goes to court you could be sued for lost earnings, future lost earnings, reinstatement of the employee, a forced employee promotion, out of pocket costs, punitive damages, attorney fees and damages, and more.
Be sure to check your policies to stay compliant, and contact us if you need help!