However, even if an employer is able to illustrate that its policy or practice is job-related and consistent with business necessity, an applicant or employee who is adversely impacted can nevertheless prevail if the employee or applicant can demonstrate that a less discriminatory alternative exists that serves the employer's goals as effectively as the challenged policy or practice (such as a more narrowly targeted list of convictions or another form of inquiry that evaluates job qualification or risk while not significantly increasing the cost or burden on the employer.)

Finally, if the policy has an adverse impact, then before an employer can take action based upon the criminal information, the employer must do two things:(1) notify the individual of the disqualifying conviction; and (2) provide the individual a reasonable opportunity to present evidence that the information is factually inaccurate. If factual inaccuracy is established, then that portion of the criminal record cannot be considered in the employment decision. 

What This Means For Employers

Employers in California who consider criminal records in screening applicants or making employment decisions must be mindful of the obstacles imposed on them by this new regulation. At a minimum, employees should review their policies and practices to make sure they are in compliance. To that end, all questions regarding criminal history on job applications should be carefully tailored to exclude the inquiries identified above.  Also, Employers must use extreme caution when utilizing a policy of automatic rejection of any applicant with a criminal history because the regulations require a more nuanced tailored approach. Finally, supervisors and managers involved in making hiring and other employment decisions should be trained to understand how these new regulations impact those processes and the rights that are now afforded to applicants and employees under these new Regulations.