Can we ask applicants if they have a felony conviction in our application or during their interview?

If you have five or more employees, you cannot include a question on your application asking whether the applicant has any prior felony convictions. In fact, you cannot ask about criminal history at any time before the conditional offer of employment has been made. Covered employers cannot include any question on a job application that directly or indirectly seeks the disclosure of the applicant’s conviction history. You cannot inquire or consider the conviction history of an applicant until after a conditional offer of employment has been made.

California’s Fair Employment and Housing Act (FEHA) and several local ordinances protect against the use of criminal history as a basis for making an offer of employment. The reason the timing is after an offer has been made is so that an applicant is not evaluated for the position based on a past conviction.

There are very limited exceptions to California’s “ban-the-box” law. Employers who must conduct criminal background checks to comply with various state or federal laws should consult with legal counsel.

If you improperly obtain or use criminal history information, you can be subject to a civil lawsuit. Furthermore, a violation of the ban-the-box law can result in a lawsuit under the California FEHA.

An applicant or employee also can bring a discrimination lawsuit under FEHA if the applicant or employee can show that the criminal background check practice had an adverse impact on a protected class.

Read more about Restrictions on Obtaining Criminal History in the HR Library.