The California Chamber of Commerce is asking the state Office of Administrative Law (OAL) to reject proposed regulations that create confusion regarding when employers may consider criminal history in making employment decisions and which could lead to litigation.
The CalChamber does not believe the Fair Employment and Housing Council (FEHC) has authority under the law to adopt the proposed regulations.
No Authority
CalChamber does not believe that anything within the Fair Employment and Housing Act (FEHA) grants the FEHC authority to impose mandates on how employers use criminal history in employment decisions.
In addition, there is no statutory authority for the FEHC to interpret the Civil Code or the Labor Code regarding the relevancy of criminal convictions, based upon the time that has passed, as the council seeks to do in the proposed regulations.
New Legislation
Legislation introduced on February 16 further emphasizes the FEHC’s lack of statutory authority, the CalChamber points out.
The bill, AB 1008 (McCarty; D-Sacramento) includes various mandates set forth in the pending regulations, including requirements for employers to:
• consider the factors and nature/gravity of the offense or conduct, the time passed since the conviction and the nature of the job sought;
• conduct an individualized assessment; and
• allow the employee to respond and mitigate any criminal history information.
If the FEHC had authority to promulgate the regulations that include these new mandates on employers, there would be no need for the Legislature to amend the Government Code as proposed in AB 1008.
Confusion, Litigation
The CalChamber points out that the regulations essentially preclude employers from having policies that uniformly exclude applicants with certain criminal convictions unless that employer can establish that it assessed each applicant individually and determined whether that applicant posed an unacceptable risk.
The regulations then create a presumption that considering any conviction more than seven years old is discriminatory.
If the employer deems that the applicant does pose a risk, the employer could be exposed to litigation for discrimination under FEHA.
If the employer decides the applicant does not pose a risk, the employer could expose members of vulnerable populations, such as children or the elderly, to potential harm.
Similar concerns apply to individuals who have felony convictions dealing with theft or embezzlement, and whether such individuals should be hired for a position dealing with customer financial information, employee personal data, and employer financial accounts or money.
The risk of litigation under FEHA is enhanced by the catchall provision at the end of the regulations that states even if an employer demonstrates its decision not to hire an applicant with a criminal history is job-related and excluding the applicant is consistent with business necessity, the employer still may be liable if the applicant can show there was a less discriminatory alternative available other than denying the applicant employment.
Next Steps
OAL has 30 days to review and disapprove or approve of the pending regulations. OAL has until March 27 to take action.
