The  (FEHC) released their finalized  regarding consideration of criminal history in employment decisions. The .

Section § 11017.1(a) restates California state law that  from  for “hiring, promotions, training, discipline, , termination, and other employment decisions.”  Section (b) of 11017.1 lists  that employers are prohibited from using in employment decisions:

1. An arrest or detention  in ;

2. Referral to or (Labor Code section 432.7);

3. A conviction that has been  pursuant to the law (e.g., juvenile records sealed pursuant to Welfare and Institutions Code section 389 and Penal Code section 851.7 or 1203.45) (Id.);

4. An arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred ; and

5. A  for possession of marijuana that is  (Labor Code Section 432.8).

The regulation continues by incorporating (“EEOC”)  that  in employment decisions if it causes an “adverse impact” towards the individual based on their gender, race, and national origin. “Adverse impact,” which is defined by reference to the EEOC’s “disparate impact” guidelines, means employment decisions resulting from policies that appear neutral but have the “effect of disproportionately screening out a .” Although the regulation states that the applicant or employee bears the burden of proving an adverse impact, it can be established through the use of conviction statistics or other evidence.  If the applicant or employee proves that the policy or practice of considering criminal convictions creates an adverse impact, the  because it is job-related and consistent with business necessity. In order to prove job-relatedness and business necessity, the regulation establishes .  The employer must demonstrate that, when making employment decisions, it :

1. The  of the or conduct;

2.  since the or conduct and/or completion of the sentence; and

3. The .

To show that the policy is narrowly tailored to the job for which it applies, :

1. The  that if it uses any “bright-line” conviction disqualification or consideration in its policy, that that policy can properly distinguish between applicants or employees who do and do not pose an  and that the convictions being used to disqualify have a  bearing on the person’s ability to perform duties related to the employment position. Bright-line considerations are defined as . Bright-line conviction disqualification or practices that include  are subject to a rebuttable presumption that the policy was not sufficiently tailored to meet the job-related and consistent with business necessity affirmative ; or 

2.  of the circumstances and qualifications of the applicants or employees,  (before any adverse action is taken) . The  due to their particular circumstances. Based on the information provided by the individual, the whether there is an exception to the exclusion.

Whether the employer uses “”  or conducts  before taking an adverse action against the individual, the  and a r. If the applicant establishes that the record was factually incorrect, then  in the employment decision.

Furthermore, in section (g) , the regulation provides that  and consistent with business necessity, the adversely affected  by demonstrating that there was a less discriminatory policy that serves the employer’s goals, such as a more narrowly targeted list of convictions or another form of inquiry that evaluates job qualifications or risk as accurately without significantly increasing the cost or burden on the employer.

• The law  with  who use criminal history in making employment decisions.

• Before making an adverse employment decision (hiring, firing, placement) on the basis of criminal history,  the a) The  or conduct; b)  or conduct and/or completion of the sentence; and c) The nature of the job held or sought.

• The law  in its hiring decisions that either (a) provides for conducting an  of each applicant on whom it considers taking an adverse employment action or (b) that  and that the convictions being used to disqualify have a  on the person’s ability to perform duties related to the employment position.

• The  and a . If the applicant establishes that the record was factually incorrect, then the record cannot be used in the employment decision.

We recommend that you seek an employment lawyer who can review your policies related to using criminal history to make employment decisions.

The proposed FEHC final text is accessible here for review: http://calemploymentlawupdate.proskauer.com/files/2017/03/ Final_Text_of_Consideration_Criminal_History_Employment_Decisions.pdf

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