When was the last time your agency reviewed its policy regarding the use of arrest and conviction records in hiring? If the answer to this question does not readily come to mind, it may be a good time to audit your hiring policy and job application.
Earlier this year Pepsi agreed to pay a $3.13 million settlement to resolve a race discrimination charge filed by the U.S. Equal Employment Opportunity Commission ("EEOC"). According to the EEOC, Pepsi's criminal background check policy barred applicants from being hired into permanent positions if they had been arrested. These applicants were screened out even if they had never been prosecuted or convicted of any offense. The EEOC determined that Pepsi's policy disproportionately excluded African-American applicants from permanent employment with the company and was, therefore, in violation of Title VII of the Civil Rights Act of 1964. The EEOC estimated that approximately 300 African-American applicants were adversely affected by Pepsi's policy. The EEOC also worked with Pepsi to adopt a new criminal background check policy.
Under California Law, employers may not ask a job applicant to disclose information concerning an arrest or detention that did not result in a conviction. California employers are also prohibited from making hiring decisions based on an arrest that did not result in a conviction. It is permissible for employers to ask employees if they have ever been convicted and, if so, they may ask about the offense. However, the use of conviction records as an absolute bar to employment is improper because it disproportionately excludes certain racial groups. According to the EEOC, the reasoning behind this is that "Blacks and Hispanics are convicted in numbers which are disproportionate to Whites and that barring people from employment based on their conviction records will therefore disproportionately exclude those groups." Therefore, such records should not be used to immediately screen an applicant out unless there is a business need for it.
In order to determine if there is a legitimate business reason for screening out an applicant based solely on a criminal conviction, the following three factors are among those that should be considered: (1) the nature of the job, (2) the nature and seriousness of the offense, and (3) the length of time since the conviction. Employers should also consider the relationship between the nature of the conviction and the position. These factors focus on the applicant's conduct, as opposed to the conviction itself, in determining whether an applicant is fit to perform the job.
Employers also may not ask a job applicant to disclose marijuana convictions that are over two years told. Clear language must be included in the job application that notifies the applicant that the employer is not seeking the disclosure of such information. The language must also be placed in a location that will attract the reader's attention.
Finally, it is important to note that these rules do not apply to peace officer applicants. When recruiting peace officers, every peace officer, other than reserve peace officers, employed by a department must be selected in conformance with the following requirements:
Employment of convicted felons is prohibited.Fingerprinting and search of local, state, and national files to reveal any criminal records is required prior to employment.
Peace officers must be determined to be of moral character as determined by a thorough background investigation.
Please contact our Los Angeles, San Francisco, Fresno, or San Diego office for any assistance in reviewing hiring policies or job applications. In addition, LCW's workbook Personnel Issues: Hiring, Reference Checks and Personnel Records and Files also contains hiring guidelines and sample job applications.
This article first appeared on the firm's California Public Agency Labor and Employment Blog. To view other blog posts, please visit www.calpublicagencylaboremploymentblog.com.