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.
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
- Out-of-pocket expenses
- Policy changes
- Reasonable accommodation(s)
- Damages for emotional distress
- Punitive damages
- Attorney’s fees and costs
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.
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.
Which California laws apply to the use of criminal history by housing providers?
California’s Fair Employment and Housing Act (FEHA) protects people from housing discrimination based on protected characteristics including race, color, national origin, religion, disability, gender, gender identity, familial status, veteran/military status, sexual orientation, and source of income. Most housing providers are also covered by the Unruh Act, which prohibits discrimination on the basis of immigration status, citizenship, and primary language, among others. Having a criminal history is not in itself a protected characteristic under FEHA or the Unruh Act. However, regulations that went into effect on January 1, 2020 implement FEHA with respect to the use of criminal history in housing (California Code of Regulations, Title 2, Sections 12264-12271).
When does a housing provider violate California law if they consider someone’s criminal history?
A housing provider’s policy or practice regarding criminal history will violate California law when it has an unjustified discriminatory effect on members of a protected class, even when the provider had no intent to discriminate. In California as in the rest of the nation, African Americans, Hispanics (or Latinos), and certain other groups face higher rates of arrest, conviction, and incarceration than the general population. The use of criminal history information in housing decisions can therefore have a disproportionate negative affect on these protected groups.
In addition, a housing provider’s policy or practice regarding criminal history will violate California law if it constitutes intentional discrimination on the basis of a protected characteristic. For example, it is unlawful for housing providers to: use criminal history screenings to intentionally exclude individuals because of their race, only run criminal history screenings on certain racial groups, or treat individuals in different racial groups differently based on comparable criminal history information.
Additional information relevant to this question are provided in the FAQs below and the regulations.
Who must comply with California’s fair housing laws?
- Property management companies
- Homeowners associations
- Public housing authorities
- Real estate agents
- Home sellers
- Property insurers
- Mortgage lenders
- Tenant screening companies
- Consumer reporting agencies
Can a housing provider advertise or indicate a blanket ban against applicants with criminal records?
No. Housing providers cannot make any statement indicating a blanket ban on renting to anyone with a criminal record. The law prohibits advertisements, screening policies (oral or written), or statements with blanket bans such as “No Felons” or “We Don’t Allow Criminals Here.” However, it is not unlawful for a housing provider to advertise or state that it will run a lawful criminal history check.
May a housing provider lawfully check an applicant’s criminal history?
Yes. Generally, a housing provider may check the criminal history of an applicant, although there are some types of criminal history information that providers may not seek or consider (see FAQ below). If a housing provider intends to deny someone housing (or otherwise take an adverse action against someone) it must be based on a past criminal conviction. And, the law requires the provider to follow certain guidelines, which are set forth in the regulations (see FAQ below). Most importantly, the conviction the provider is concerned about must be a “directly-related conviction.” This means a criminal conviction that has a direct and specific negative bearing on a substantial, legitimate, and nondiscriminatory interest or purpose of the housing provider, such as the safety of other residents, the housing provider’s employees, or the property.
In determining whether a criminal conviction is directly-related, a housing provider should consider the nature and severity of the crime and the amount of time that has passed since the criminal conduct occurred. For example, a ten-year-old misdemeanor conviction for a driving offense would not likely be directly-related to fulfilling financial obligations because there is no rational relationship between the violation and the identified business interest. In contrast, a recent criminal conviction for residential arson could be directly-related to the risk that an individual may injure other residents or property because there is a rational relationship between recently committing residential arson and injuring residents or property.
What types of criminal history information are a housing provider prohibited from considering?
It is unlawful for a housing provider to seek or consider the following:
- Arrests that did not lead to a conviction;
- Information indicating that an individual has been questioned, apprehended, taken into custody, detained, or held for investigation by law enforcement;
- Referral to or participation in a pre-trial or post-trial diversion program or a deferred entry of judgment program, unless the applicant offered this information as mitigating information (see FAQ below);
- Criminal convictions that have been sealed, dismissed, expunged, or otherwise rendered legally inoperative, unless the applicant offered this information as mitigating information (see FAQ below); or
- Adjudications or matters processed in the juvenile justice system, unless pursuant to an applicable court order or unless the applicant offered this information as mitigating information. (see FAQ below).
If a housing provider would like to consider criminal history information (aside from the prohibited information detailed in FAQ above), what should the provider’s policy or practice look like?
A housing provider may consider certain criminal history, but the provider’s policy or practice should:
- Be narrowly tailored and focus on whether any criminal conviction is “directly- related” (see FAQ above);
- Provide an opportunity for applicants to present individualized, mitigating information either in writing or in person if the housing provider is concerned about an applicant’s past conviction;
- Provide written notice of the opportunity to all applicants to present mitigating information if a housing provider is concerned about a past conviction;
- Consider the factual accuracy of the criminal history information of the applicant, meaning the background report does not contain outdated, incorrect, or falsified information or information that is erroneously attributed to the individual being considered;
- Delay seeking, considering, or using a third-party report of criminal history information until after an individual’s financial and other qualifications are verified;
- Provide a copy or description of the criminal history background check policy to an applicant upon request; and
- Consider mitigating information in determining whether to rent to an applicant with a past criminal conviction.
What is mitigating information?
Housing providers should consider mitigating information when considering an applicant’s criminal history. Mitigating information means credible information about the applicant that suggests that the applicant is not likely to pose a demonstrable risk to the health and safety of others, the property, or other substantial, legitimate, and non-discriminatory interest or purpose of the housing provider. Mitigating information must be credible information that a reasonable person would believe is true based on the source and content of the information.
Mitigation information includes but is not limited to:
- The age of the individual when the criminal conduct occurred;
- The amount of time that has passed since the date of conviction;
- Whether the conduct arose as a result of a disability;
- Whether the conduct arose from status as a survivor of domestic violence;
- Whether the individual has maintained a good tenant history before and/or after the conviction;
- Whether there is evidence of rehabilitation efforts, including satisfactory compliance with all terms and conditions of parole and/or probation; successful completion of parole, probation, mandatory supervision, or post release community supervision; and
- Other conduct demonstrating rehabilitation, such as maintenance of steady employment.
May a housing provider rely on third parties to perform criminal history checks?
Yes. However, it is not a defense for a housing provider to have relied on a third party’s criminal history report if the use of the criminal history violates fair housing laws, and such third parties are also subject to California’s fair housing laws. Housing providers that rely on criminal histories prepared by third parties, such as consumer reporting agencies, may wish to seek from the third party details on any criminal records discovered so that the housing provider can make a lawful, individualized assessment. Furthermore, other laws limit the extent to which consumer reporting agencies can report such information.
Mitigation information includes but is not limited to:
It is unlawful for these agencies to report records of an applicant’s arrest, indictment, information, misdemeanor complaint, or conviction of a crime that, from the date of disposition, release, or parole, are more than seven years old (California Civil Code section 1785.13).