On March 27, the Office of Administrative Law for the State of California announced new regulations that even further limit employers’ ability to consider a job applicant’s criminal history when making hiring decisions.
Except if otherwise permitted by law, employers are prohibited from taking into consideration during the hiring process a number of enumerated offenses, including arrests that did not result in a conviction or offenses that resulted in referral to a pretrial or post-trial diversion program.
The regulations also set forth a process for applicants to allege that the consideration of criminal history has an adverse impact on protected classes, such as gender, race, and national origin. The applicant can set forth a presumption with statistics, that can then be rebutted by the employer by showing “that there is a reason to expect a markedly different result after accounting for any particularized circumstances such as the geographic area encompassed by the applicant or employee pool, the particular types of convictions being considered, or the particular job at issue.” Notably, when an employer establishes a categorical prohibition on hiring based on certain types or categories of convictions, a rebuttal presumption is created that the prohibition is not sufficiently tailored to avoid adverse impact.
The regulations also reaffirm that other federal, state, and local regulations regarding the hiring process remain in effect.
California’s regulation is consistent with recent increases in legislative scrutiny of employment application practices, with many states and localities having enacted similar legislation focusing on an applicant’s criminal history at the initial application stage. Troutman Sanders will continue to monitor related legislative developments concerning employment background screening and employee hiring.