If you have five or more employees, California law requires that you follow strict provisions when conducting criminal background checks as part of your hiring process. There are, however, a few exceptions, such as positions required by law to have the background check.

1. Know When You Can Conduct a Criminal Background Check

You cannot ask about criminal history information on job applications, or inquire about or consider criminal history at any time before a conditional offer of employment has been made.

Before this conditional job offer has been made, never:

Require an applicant to consent to a criminal background check;
Ask applicants about their criminal history on a job application, during a job interview or at any other time;
Seek information about an applicant's criminal history from any source; or
Consider an applicant's criminal history.

Once you make a conditional job offer, you may legally obtain a candidate’s criminal background if you follow the specific notice requirement outlined below, and don’t make off-limit inquiries. Under California law, some criminal history information is almost always off limits, such as inquiries into juvenile criminal history or expunged convictions.

Employers also must be careful that any use of criminal history information does not result in discrimination. California FEHA regulations prohibit employers from considering criminal information in employment decisions if doing so would have an “adverse impact” on a protected class. Employers will need to show that the criminal information is job related and consistent with business necessity. These regulations can be found on the Civil Rights Department.

2. Before Conducting a Background Check

Whether you're using an investigative consumer reporting agency to conduct a check or doing a public records search yourself, some paperwork is necessary.

If you’re using an investigative consumer reporting agency:

Tell the applicant in writing that you intend to obtain an investigative consumer report and obtain the applicant’s authorization. You can use the Disclosure and Authorization to Obtain Investigative Consumer Report.
Certify to the agency conducting the search that the applicant disclosure has been made, authorization has been obtained and that the information will not be used in violation of any state or federal law. You can use the Certification to Consumer Credit Reporting Agency.

If you’re not using an agency to obtain the information, you must give the applicant a copy of public records you obtain within seven days of receipt — unless the applicant waives their right to a copy.

3. Make a Preliminary Decision Based on the Results

If the results did not affect your decision to hire the applicant, inform them that the conditional offer is now an official offer and move on to offering official employment.

If the results did affect your decision and you intend to deny the applicant the position, you must first conduct an individualized assessment.

4. Conduct an Individualized Assessment

If the criminal background check results affect your hiring decision, you must assess whether the conviction history has a direct and adverse relationship on the job’s specific duties that justifies denying the position to the applicant.

At a minimum, you must consider:

The nature and gravity of the offense or conduct. Consideration of this factor may include but is not limited to:

The applicant's specific personal conduct that resulted in the conviction;
Whether the harm was to property or people;
The degree of the harm (e.g., amount of loss in theft);
The permanence of the harm;
The context in which the offense occurred;
Whether a disability, including but not limited to a past drug addiction or mental impairment, contributed to the offense or conduct, and if so, whether the likelihood of harm arising from similar conduct could be sufficiently mitigated or eliminated by a reasonable accommodation, or whether the disability has been mitigated or eliminated by treatment or otherwise;
Whether trauma, domestic or dating violence, sexual assault, stalking, human trafficking, duress, or other similar factors contributed to the offense or conduct; and/or
The applicant’s age when the conduct occurred.

The time that has passed since the offense or conduct and completion of the sentence. Consideration of this factor may include but is not limited to:

The amount of time that's passed since the conduct underlying the conviction, which may significantly predate the conviction itself; and/or
When the conviction led to incarceration, the amount of time that's passed since the applicant’s release from incarceration.

The nature of the job held or sought. Consideration of this factor may include but is not limited to:

The job’s specific duties;
Whether the context in which the conviction occurred is likely to arise in the workplace; and/or
Whether the type or degree of harm that resulted from the conviction is likely to occur in the workplace.

Though not required, you can put the results of the individualized assessment in writing to keep for your records.

5. Notify the Applicant of Intended Decision to Deny Employment

After the individualized assessment, you may still wish to deny employment. Before doing so, you must:

Notify the applicant in writing of the intended decision. Use the Notice of Preliminary Decision to Withdraw Employment Offer.
Give the applicant at least five business days from receipt to present evidence challenging the accuracy or the conviction and/or evidence of mitigating factors or rehabilitation.
Give the applicant five additional business days if they are disputing the accuracy of the conviction and taking steps to provide evidence to support the dispute.

To determine a response deadline, it’s important to note that the five-day time frame runs from the date the applicant receives the notice. If the employer sends the notice in a way that doesn’t allow confirmation of receipt, then the CRD regulations specify certain timeframes for when the notice is deemed received depending on how the notice is sent. If the notice is sent without tracking and/or confirmation of receipt, then the written notice will be deemed received either:

Five calendar days after the mailing is deposited for delivery to a California address;
10 calendar days after the mailing for addresses outside of California; or
20 calendar days after mailing for addresses outside of the United States.

If the notice is transmitted through email, the notice will be deemed received two business days (not calendar days) after it is sent.

If you used an investigative agency to obtain the criminal background check, you must give an additional notice to the applicant as required by the Fair Credit Reporting Act and the California Investigative Consumer Reports Act. You may use the Pre-Adverse Action Disclosure - FCRA and ICRAA for this purpose.

6. Consider Applicant’s Evidence

You are required by law to consider information submitted by the applicant before making a final decision about whether to them, which can include evidence of rehabilitation or mitigating circumstances, including, but not limited to, information related to:

The length and consistency of employment history before and after the offense or conduct.
The facts or circumstances surrounding the offense or conduct.
The applicant’s current or former participation in self-improvement efforts, including but not limited to school, job training, counseling, community service and/or a rehabilitation program, including in-custody programs.
Whether trauma, domestic or dating violence, sexual assault, stalking, human trafficking, duress, or other similar factors contributed to the offense or conduct.
The applicant’s age when the conduct occurred.
Whether a disability, including but not limited to a past drug addiction or mental impairment, contributed to the offense or conduct, and, if so, whether the likelihood of harm arising from similar conduct could be sufficiently mitigated or eliminated by a reasonable accommodation, or whether the disability has been mitigated or eliminated by treatment or otherwise.
The likelihood that similar conduct will recur.
Whether the applicant is bonded under a federal, state or local bonding program.
The fact that the applicant is seeking employment; and/or
Successful completion, or compliance with the terms and conditions, of probation or parole.

The types of documentary evidence the applicant can provide may include, but is not limited to, the following examples:

Certificates or other documentation of participation in, enrollment in or completion of an educational, vocational, counseling, community service or rehabilitation program including in-custody programs.
Letters from current or former teachers, counselors, supervisors, coworkers, parole or probation officers, or others who know the applicant.
Police reports, protective orders and/or documentation from health care providers, counselors, case managers or victim advocates who can attest to the applicant’s status as a survivor of domestic or dating violence, sexual assault, stalking, or comparable offenses.
Documentation confirming the existence of a disability.
Any other document demonstrating rehabilitation or mitigating circumstances.

The production of any evidence is optional and may be provided by the applicant or by another party at the applicant’s request. If after considering the information you plan to hire the applicant, inform the individual that the conditional offer is now an official offer and move on to offering official employment.

If the applicant’s information did not change your decision and your final decision is still to deny the applicant the job, you must give a final written notice to the applicant.

7. Notify Applicant of Final Decision

Provide the applicant with written notice of any final decision to deny employment because of the individual’s criminal background. The notice must contain certain information required by law. You may use the Notice of Final Decision to Withdraw Offer of Employment.

If you used an investigative agency to obtain the report, you must give an additional notice to comply with the Fair Credit Reporting Act and the California Investigative Consumer Reports Act; you may use the Adverse Action Notice - FCRA and ICRAA.

If you did not use an investigative agency to obtain the information, you must provide a copy of the public records you obtained, even if the applicant previously waived their right to receive copies.

How To: Conduct a Criminal Background Check