Criminal History in Employment

The Fair Chance Act (Assembly Bill No. 1008), effective January 1, 2018, added a new section to the Fair Employment and Housing Act (at Government Code § 12952) making it illegal for most employers in California to ask about the criminal record of job applicants before making a job offer. This means ads, job applications, and interview questions cannot include inquiries into an applicant’s criminal record. The purpose of the law is to allow applicants to be judged based on their qualifications.


Know Your Rights

The law generally prohibits employers from:

  • Including on a job application any questions about conviction history before a conditional job offer has been made
  • Asking about or considering your criminal history before a conditional job offer has been made
  • Considering information about arrests not followed by conviction, participation in pretrial or posttrial diversion programs, or convictions that have been sealed, dismissed, expunged, or statutorily eradicated
  • Including on a job application that a criminal history would disqualify one from employment prior to application
  • Considering, distributing, or disseminating information about your referral to or participating in a pretrial or postrial diversion program
  • Not making an individualized assessment considering the nature and gravity of the conduct, the time passed, and the nature of the job held or sought
  • Not explaining your right to submit evidence challenging the conviction history report, mitigating circumstances, or circumstances regarding your rehabilitation
  • Not notifying you in writing of your right to file a complaint with DFEH

After making a job offer, employers are allowed to conduct a criminal history check. But under the law, employers cannot take back a job offer based on an applicant’s criminal history without going through a process that includes:

  • Making an individualized assessment that justifies denying the applicant the position;
  • Notifying the applicant in writing of a preliminary decision to take back the offer;
  • Giving the applicant a chance to provide additional information; and
  • Notifying the applicant in writing of a final decision to take back the offer and informing the applicant of the right to complain to DFEH.

Fair Chance to Access Employment Video on YouTube

Fair Chance to Access Housing Video on YouTube

Available Remedies

State law provides for a variety of remedies for victims of employment discrimination, including:

  • Back pay (past lost earnings)
  • Front pay (future lost earnings)
  • Hiring / Reinstatement
  • Promotion
  • Out-of-pocket expenses
  • Policy changes
  • Training
  • Reasonable accommodation(s)
  • Damages for emotional distress
  • Punitive damages
  • Attorney’s fees and costs

Sample Forms

The law requires employers to provide applicants written notice of preliminary and final decisions to revoke job offers based on criminal history. DFEH has created the sample notices below to assist employers in complying with this obligation. The law does not require the use of these sample preliminary and final revocation notices, but they may be a useful tool for employers.

DFEH has also created a sample conditional job offer letter and a sample form for conducting individualized assessments of criminal history. The law does not require employers to make conditional job offers in writing or record in writing the results of individualized assessments of criminal history. However, these forms may be a useful tool for employers that choose to do so.

FAQ

What is the Fair Chance Act?

The Fair Chance Act, which went into effect on January 1, 2018, is a California law that generally prohibits employers with five or more employees from asking about your conviction history before making you a job offer. This type of law is also known
as a “Ban the Box” law.

How does the law work?

The law generally prohibits employers from:

  • Including on a job application any questions about conviction history before a conditional job offer has been made
  • Asking about or considering your criminal history before a conditional job offer has been made
  • Considering information about arrests not followed by conviction, participation in pretrial or posttrial diversion programs, or convictions that have been sealed, dismissed, expunged, or statutorily eradicated

After offering you a job, employers are allowed to conduct a criminal history check, but the law requires an individualized assessment about your conviction history. That means that an employer can’t take back the job
offer without considering the nature and gravity of the criminal history, the time that has passed since the conviction, and the nature of the job you are seeking. If the employer decides to take back the job offer based on your criminal history,
they must tell you so in writing, provide a copy of any conviction history report they relied on, and give you at least five business days to respond.

Which employers are covered by the law?

Public and private employers with five or more employees are covered by the law. But there are some exceptions. The law does not apply to certain positions at health care facilities, farm labor contractors, or positions with state criminal justice agencies. It also does not apply to any position where an employer is required by another law to conduct background checks or restrict employment based on criminal history. However, while employers do not have to comply with the requirements of the Fair Chance Act (Government Code section 12952) when hiring for such positions, their use of criminal history may still be challenged as discriminatory if it has an adverse impact on individuals in a protected basis (such as race). In such cases, the employer must show that the consideration of criminal history is job-related and consistent with business necessity. Even if the consideration of criminal history is job-related and consistent with business necessity, it will be unlawful if there is a less discriminatory way to meet the business necessity.

After a conditional offer of employment, what can an employer ask me about my criminal history?

After a conditional offer, an employer may ask you if you have any history of convictions. But employers may not ask about or consider information about (1) an arrest that did not result in a conviction (subject to the exceptions in Labor Code
§ 432.7(a)(1) and (f)); (2) referral to or participation in a pretrial or posttrial diversion program; or (3) convictions that have been sealed, dismissed, expunged or statutorily eradicated pursuant to law.

The following is an example of a permissible question after a conditional offer:

Have you ever been convicted of a misdemeanor or felony? Answer “NO” if : (1) you have never been convicted of a misdemeanor or felony; (2) the misdemeanor or felony was sealed, dismissed, expunged, or reversed on appeal; (3) you withdrew your
plea after completing a court program and were not convicted of a misdemeanor or felony.

What happens if an employer learns about my conviction history through a background check or by asking me and wants to take back the job offer?

The law provides you with important rights if the employer wants to take back (rescind) your conditional job offer because of your criminal history.

  • Individualized assessment: The employer must make an individualized assessment about your conviction history. That means that an employer has to consider the nature and gravity of your criminal history (the harm
    caused by the criminal conduct), the amount of time that has passed since the conviction, and the nature of the job you are seeking (the essential functions and the job environment). The employer cannot simply say that they won’t hire
    anyone convicted of a certain crime.
  • Notification in writing: The employer must notify you in writing of the preliminary decision that your conviction history disqualifies you from employment.
  • Notice of disqualifying conviction: The employer must provide you a notice of the convictions that disqualify you from employment.
  • Copy of conviction history report: If the employer obtained a copy of your conviction history report, they must provide you with a copy of the report.
  • Chance to respond: The employer has to give you at least five business days to respond to the preliminary decision to take back your job offer (and has to tell you that you can respond). If you dispute the conviction
    history report, and you tell the employer within five days, then you get an additional five days to respond. The employer has to tell you that your response can include any evidence challenging the accuracy of the conviction history report,
    plus any evidence of your rehabilitation or circumstances that you believe are important for the employer to consider about your life or the crime. Examples of this type of evidence include your employment history, an explanation of circumstances
    about your involvement in the crime, and rehabilitation efforts such as education or training.
  • Consideration of your response: The employer must consider any information you submit in response.
  • Final notification in writing: After considering any information you submit, the employer must notify you in writing of any final disqualification from the job, any procedure the employer has to challenge that final
    disqualification, and your right to file a complaint with the Department of Fair Housing and Employment.

What should I do if I think an employer has violated the law?

Within one year of an employer’s violation of the law, you may file a complaint by either filling out a complaint form online in our Cal Civil Rights System, by downloading an intake form and mailing it in, visiting a DFEH office, or calling our Communication Center at 800-884-1684
(voice), 800-700-2320 (TTY) or California’s Relay Service at 711.


Comunication Center: 800-884-1684 (voice), 800-700-2320 (TTY) or
California's Relay Service at 711 | contact.center@dfeh.ca.gov