Effective July 1, 2017: Tighter Regulations on Considering Criminal History During Employment Decisions

In 2016, The California Fair Employment and Housing Council introduced revised regulations governing an employer’s consideration of criminal history when making employment decisions. The Office of Administrative Law approved these regulations, and they will become effective on July 1, 2017.

Essentially, these new regulations focus on two areas:

  1. Adverse impact claims
  2. Prohibitions and notice requirements regarding criminal history

Let’s take a closer look at what this may mean for you and how it might impact your employment decision process.

Adverse Impact Claims

Simply put, these new regulations will impose stricter limitations when using criminal records during employment decisions (for example, an employer’s decision to hire, fire, train or discipline an employee). These California regulations now align with federal law stating Employers are prohibited from using criminal history if doing so has an adverse impact on a current or prospective employee.

Likewise, employees are permitted to confirm adverse impact by using criminal conviction statistics, explaining that state/federal statistics of disparities in criminal convictions of a protected category are sufficient to illustrate adverse impact.

If an existing or potential employee establishes a claim, the burden is on the employer to show that the policy regarding consideration of criminal history is “job-related and consistent with business necessity” and takes into consideration the nature of the offense and the amount of time passed since the offense and/or completion of the sentence. Policies that consider convictions older than seven years may be subject to rebuttable presumption. Bright-line disqualification practices are also subject to new regulations. Employers must demonstrate that this practice can clearly distinguish between employees who do or do not impose a risk, and that criminal conviction has a negative impact on ability to perform job duties. Once employers establish this defense, the burden is on the employee to illustrate an alternative resolution.

Prohibitions and notice requirements regarding criminal history

New regulations also detail criminal history information that employers may no longer consider, and include additional requirements for providing applicant notice. Specifically, employers are prohibited from considering:

  • Arrests that did not result in conviction
  • Pre- or Post-trial diversion
  • Dismissed, sealed, or expunged conviction
  • Certain juvenile criminal history
  • Non-felony conviction (older than two years) of marijuana possession

If an employer receives a disqualifying conviction from a source other than the application, the employer must now provide notice of a disqualifying conviction prior to adverse action AND allow the applicant reasonable opportunity to respond with evidence of factual inaccuracy.

PLEASE NOTE: This notice and opportunity-to-respond requirement differs from the Fair Credit Reporting Act (“FCRA”) and “Ban the Box” California ordinances.

Prior to July 1, 2017, please take a moment to review your policies. California Employers should:

  • Reassess use of bright-line disqualifications
  • Update policies/procedures to remove prohibited disqualifications
  • Confirm that consumer reporting agencies used to screen applicants have implemented new regulations
  • Create policy/procedure providing notice of disqualifying conviction, as now required
  • Remain aware of federal/local regulations imposing additional limitations

The information contained herein is not specific legal advice, and should not be construed as such. You should discuss the use of policies and practices regarding employment decisions with your organization’s legal counsel to ensure regulatory compliance. For more information these and other regulations regarding employment screening, please contact A-Check Global via our contact page or 877-345-2021 today.


Experts Predict More Mediation in the EEOC’s Future

3.28.17 - Experts Predict More Mediation in the EEOC

President Trump’s election in November of 2016 has caused many government agencies to wonder what the future holds. Will there be budget cuts, or budget increases? Hiring surges, or hiring freezes? Although there is quite a bit of uncertainty amongst these agencies, legal experts believe that one government agency, in particular, should expect major changes: the Equal Employment Opportunity commission (EEOC).


According to their website, “the EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information. It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.”


Since its establishment in 1965, the EEOC has performed these responsibilities successfully, with their efforts often leading to numerous lawsuits, judgments, and even the establishment of new laws aimed at protecting members of particular classes and groups.


Historically, these lawsuits, or the risk thereof, have posed significant challenges and changes for employers throughout the country due to the ease of initiating cases. However, with mediation on the horizon, this may change.


According to the EEOC, “Choosing mediation to resolve employment discrimination disputes promotes a better work environment, reduces costs and works for the employer and the employee.”


Essentially, this means a simple mediation can resolve a claim or issue, which will significantly decrease the number of investigations and litigations for employers. Additionally, an increase in mediation will give more power back to employers – enabling them to reach more mutually-beneficial conclusions with applicants/employees.


An official announcement/declaration of expected agency and policy changes under the Trump Administration has not yet been released by the EEOC, but employers interested in remaining informed, should visit the EEOC site regularly for updates.


For more information on EEOC compliance and/or how EEOC regulations impact employment screening, contact A-Check Global today via our contact page, or by calling 877-345-2021.


Managing the Newly ‘Revised’ Form I-9

Date:  Thursday, March 23, 2017

View a recording of the Webinar here!.


Dave Basham – Sr. Outreach Analyst – U.S. Citizenship & Immigration Services Department of Homeland Security

Dave joined U.S. Citizenship and Immigration Services in 2008, following his retirement from the U.S. Army. He serves as a national contact for ICE agents in regards to the Form I-9 and E-Verify. Dave has conducted over 500 nationwide presentations which included audiences of elected officials, immigration attorneys, compliance personnel to human resources and payroll professionals. In 2014, Dave was selected as the recipient of Arkansas’s SHRM (Society of Human Resources Management) ‘Friend of HR’ award. Dave’s military assignments were numerous in the Infantry arena. His military service decorations include the Legion of Merit. Dave’s originally from West Virginia but now makes his home in historic Virginia.


Subject Matter:

A new version of the Form I-9, Employment Eligibility Verification, was released on November 14, 2016. By January 22, 2017, employers should be using the revised form. During this session we will cover areas to include the forms new blocks and changes; the differences in the fillable version versus the paper copy; and other “in the weeds” areas that will assist organizations with their Form I-9 processes and compliance.


Using Mobile Collection Services to Establish Drug Free Workplaces

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In recent years, workplace safety has played a more major role in employment and hiring practices than ever before. And for many employers, this evolution ties directly into the establishment of Drug Free Workplace and similar policies.


Additionally, with the passage of various drug-related laws in some states, and changes in societal expectations as they pertain to drugs in others, more and more employers are taking advantage of all that the world of drug screening has to offer.


In a recent post Benefits of Instant, Onsite Drug Screening, A-Check Global addressed the desire of many employers to transition to more convenient alternatives to standard drug screens given the increase in overall benefits. After all, standard drug screens typically require employers to designate specific dates/times for employees and/or applicants to test off-site; which, as a result, has the potential to impact turnaround time and work productivity.


Instant, onsite drug screening is a popular alternative for employers, but it is not necessarily a good fit (or a permitted solution) for all companies and organizations.


If instant drug screening is not for you or your company, then onsite mobile collection services may be the ticket, as mobile collection is ideal for those looking to avoid an extended absence from employees. A mobile collection service consists of a collection facility coming to the place of employment to conduct all necessary drug screens that follow all typical procedures practiced at licensed facilities.


This option is useful for large groups of employees or applicants who are undergoing either random program, periodic, or pre-employment drug screening. Additionally, having an onsite collection facility come to a place of employment allows the collection to be completed via industry best-practice procedures during all stages of the screening process, while also having access to professional laboratory analysis, anti-adulteration technology, and, when applicable, additional review from an MRO.


If you are interested in mobile collection services, or incorporating alternative drug screening methods into your current Drug Free Workplace policy, please contact A-Check Global through our contact page, or by phone at 877-345-2021.


Benefits of Instant, Onsite Drug Screening

Benefits of Instant, Onsite Drug Screening.png

For many employers, drug screening is a vital piece of the hiring process. However, given the complex nature of drug screening in some industries, and time constraints in others, standard drug screens are not always a one-size-fits-all solution to drug screening needs.


A standard drug screen typically requires both collection at a licensed facility and analysis at an approved laboratory location. In addition, positive results are also subject to additional review from a Medical Review Officer (MRO). All of these procedures can have a significant impact on budgeting and work productivity, and in an effort to mitigate some of these costs, many employers have opted to make the change from traditional drug screening to alternative onsite drug screening options.


Instant-cup testing and onsite mobile collection services are both available to employers who wish to avoid the cost and inconvenience of sending their employees offsite for drug screening. While both options reduce the impact on budgeting and productivity, they each have unique advantages on a workplace drug screening program.


By opting into instant drug screening, employers are able to avoid the heavy costs of both collection facilities and laboratory testing. Regular collections at a facility can take anywhere between one to three hours – possibly even longer depending on the travel time between the place of employment and the collection facility- leaving the employee away from his or her post for an extended period of time. Instant drug testing is an effective way to circumvent this productivity loss.


Instant testing drastically reduces turnaround time for drug screens – getting workers back to work much quicker than traditional drug screening procedures. Having onsite collection kits can be useful as a preliminary drug screen to avoid unnecessary expenditures for laboratory based testing. In the case of reasonable suspicion or random program testing, instant drug testing provides a safer testing environment that does not require the employee to travel under the influence or be provided with transportation arrangements.


These procedures can be worked into any employer’s Drug Free Workplace policy, as long as they comply with all appropriate federal, state, local, union, and industry-specific regulations.


For more information on the benefits of onsite drug screening, or to incorporate it into your company/organization’s policy, contact A-Check Global today via our contact page, or by calling 877-345-2021.


Using Credit History in the Hiring Process


(Disclaimer: The information contained herein is not legal advice, and should not be construed as such. You should discuss the use of consumer reports with your organization’s legal counsel to ensure regulatory compliance.)


Historically, United States employers have commonly utilized credit history as a measure of financial responsibility and overall trustworthiness for employment applicants. However, in recent years, numerous states and municipalities have enacted legislation restricting the use of credit history in the applicant screening process to a small number of exceptions; primarily to those applicants who will have fiduciary roles if hired.


When utilizing credit reports in the hiring process, there are two primary factors employers and hiring managers should take into consideration:


  1. The laws and regulations governing the use of credit reports for employment purposes.

a) Employers and hiring managers should familiarize themselves with state/municipal laws that may limit the use of credit history in employment decisions. Some of the states/metropolitan areas with laws enacted to further regulate the use of credit history in the hiring process include: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont, Washington, Chicago, New York City and Philadelphia. The primary objective of most laws enacted by these states and jurisdictions is to restrict the use of credit reports to ensure they are only utilized when the position includes fiduciary responsibilities or positions with high compensation and/or financial decision making authority.

  1. The relevance of the report in the hiring process.


The Society for Human Resource Management (SHRM) encourages employers to consider the nature of the position prior to using credit history in the hiring screening process. SHRM notes the following:

 If the responsibilities of the job call for the employee to handle money, assets, clients’ personal information, or proprietary company data, the information provided in the credit report may be very useful … If the position doesn’t require the applicant to have access to financial or proprietary company data, a credit report may not be needed.


Ultimately, it is the responsibility of hiring managers to ensure they remain in compliance with both the FCRA and any other applicable state or local laws and regulations.


For more information on using credit history in employment screening ensuring your hiring process is legally compliant, please contact A-Check Global via our contact page or 877-345-2021 today.