Starting on July 1st, the Fair Employment and Housing Council (FEHC) began enforcing new regulations on employer use of criminal background checks in hiring decisions.

Now, the employer must justify the policy as job-related and consistent with business necessity.

The regulations identify two ways an employer could justify the policy:

• Show that a "bright-line" disqualification properly distinguishes those who do and do not pose an unacceptable level of risk
• Individually assess the candidates qualifications.

The employer must also give the applicant or employee a reasonable opportunity to show that the conviction information is wrong. If the individual provides evidence of factual inaccuracy, then the conviction cannot be considered in the employment decision.

Even when an employer can show job-relatedness and business necessity, an individual can still prevail on a claim if there is a less discriminatory alternative (such as a narrower list of disqualifying convictions) that advances the employer's legitimate concerns as effectively as the challenged one would.

What Should Employers Do Now?

The regulations pose a substantial new risk to companies that maintain no-hire policies for individuals with criminal convictions. Any such policy should be reviewed for compliance.

Read our earlier post that shared greater detail, here, or take a look at the final regulations, here.

As always, please Contact Us for help with assessing your compliance.

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