New Regs Limit Employers’ Consideration of Criminal Histories

According to Ben Ebbink, attorney with Fisher Phillips, who was speaking at the California HR Conference earlier this week, the FEHC (Fair Employment  and Housing Council) has aligned their regulations with the EEOC’s federal regulations. These regulations went into effect July 1, 2017.
The rules require that an applicant need to show that criminal convictions have an adverse impact on his/her protected class (a fairly easy standard to prove with current research).
If adverse impact is demonstrated, the burden shifts to the employer to demonstrate that its policy is “job related and consistent with business necessity,” and tailored to the specific circumstances, taking into account factors such as those set forth in Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1975), i.e.,: (i) nature and gravity of the offense or conduct; (ii) amount of time since the offense or conduct and/or completion of the sentence; and (iii) nature of the job held or sought.
What should you do?
Review your policies regarding criminal histories when hiring and make sure you are in compliance with the new regulations.

Leave a Reply

Your email address will not be published. Required fields are marked *