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New regs limit use of criminal history in hiring decisions


Many employers are choosing to hire third parties to conduct background checks on applicants who have been offered employment. In addition, depending on the nature of the position and essential job functions, employers are requesting reports about an applicant's driving and criminal record.

As of July 1, 2017, under the Fair Employment and Housing Council (FEHC), there are additional legal limits on employers obtaining and using this type of information. Also, employers must be mindful of their obligations under the Fair Credit Reporting Act and state laws. In California, employers must comply with laws concerning consumer reports, criminal background checks and driver's record information.

The new FEHC regulations expand the types of criminal history employers are prohibited from considering to include any non-felony conviction for possession of marijuana if the conviction is over two years old.

Furthermore, before an employer may take an “adverse” or unfavorable action against a candidate based on conviction history, the employer must give the candidate notice of the disqualifying conviction and provide reasonable opportunity for the candidate to present evidence that the information is factually inaccurate. This notice is only required when the information is obtained from a source other than the candidate. This notice is different from the required notices under the Fair Credit Reporting Act. The FCRA requires certain notices only if the employer takes adverse action against a candidate based on information found in a third-party background-check report. FULL ARTICLE

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