Human Resources Academy II for Community College Districts

H IRING AND R ETAINING E MPLOYEES WITH C RIMINAL R ECORDS

Section 1

Relevant Education Code Provisions: 87010; 87011

A. I NTRODUCTION Whether an applicant or employee’s criminal record constitutes a basis to deny employment will depend on the nature of the conduct giving rise to the conviction. The mere fact of a criminal record does not afford a sufficient basis—in and of itself—to deny employment to a community college district applicant or terminate an existing employee. Rather, for most offenses, a district will have to show a nexus between the nature of the offense and the duties of the position. 1 In other words, in the case of an applicant, a district should be prepared to demonstrate why the particular offense makes the applicant unsuitable for the position. For current employees, a district will have to show that the offense giving rise to the conviction constitutes cause to terminate. For academic employees, this will mean satisfying one of the “for cause” criteria set out in Education Code section 87732 (e.g. immoral conduct, unprofessional conduct, etc.) For classified employees, cause would be demonstrated based upon the provisions of district policy in non-merit districts or by statute in merit districts. 2 The EEOC has issued an advisory on this issue. The advisory reaffirmed that an employer may not intentionally discriminate, on the basis of race or national origin, against individuals with similar criminal histories. However, according to the advisory, an employer’s racially/ethnically neutral policy (e.g., a “criminal record exclusion” that excludes all applicants from employment based on certain criminal convictions) will be deemed by the EEOC to have a disparate impact on race and national origin, and thus be subject to EEOC investigation. To defend such a policy, the employer will need to establish that the policy is “job related and consistent with business necessity.” According to the EEOC advisory, an employer will be deemed to meet this defense: (1) when the employer validates its policy using the EEOC’s Uniform Guidelines on Employee Selection Procedures ( see , 29 CFR Part 1607); or (2) when the employer develops a targeted screen that considers at a minimum the nature of the crime, the time elapsed since its commission, and the nature of the job for which the applicant is applying. However, for certain sex and drug offenses, discussed below, the Education Code establishes specific requirements and prohibitions regarding the employment of individuals charged and/or convicted of certain drug and sex offenses. Specifically, the Education Code prohibits the employment of academic and classified employees charged with these specified offenses, except under certain limited circumstances. Additionally, the Education Code permits—and in some instances requires—that employees charged with such offenses be placed in immediate unpaid leave.

Human Resources Academy II for Community College Districts ©2019 (c) Liebert Cassidy Whitmore 8