Employers with five or more employees can neither ask applicants questions about criminal history, nor use criminal history information to inform their hiring decisions until after an initial offer of employment has been made. Employers also must follow set processes before making any employment decision based on criminal history information.

Moreover, all employers must make sure that any consideration of criminal history information does not disparately impact individuals in a protected class, such as race, gender, national origin or other characteristics protected by law.

Strict rules govern when you can obtain criminal history information and how it can be used; violation of these rules can lead to liability. Local ordinances may also apply.

This page contains the following information:

• Conducting Criminal Background Checks When Hiring
• Coverage
• Prohibited Inquiries Before a Conditional Offer
• Restrictions After a Conditional Offer
• Individualized Assessment
• Notice Requirements
• Other Rules Limiting Use of Criminal History in Employment Decisions
• Juvenile Criminal History Information
• Criminal History Information and Discrimination
• Local Ban- the- Box Ordinances
• Best Practices Relating to Criminal History Information
• Penalties

Conducting Criminal Background Checks When Hiring

California’s Fair Chance significantly restricts an employer’s ability to use criminal background information to make hiring decisions. Covered employers are prohibited from asking about criminal history information on job applications and from inquiring about or considering criminal history at any time before a conditional offer of employment has been made.

This type of law is commonly referred to as a “ban-the-box” law, as it eliminated the frequently used criminal history check box previously found on many employment applications. This law is part of California’s Fair Employment and Housing Act (FEHA), under which an applicant may sue for a violation.1

Use the Criminal Background Screening Checklist to help you understand how to follow all legally required procedures.

• Criminal Background Screening Checklist

The Civil Rights Department (CRD) revised its criminal history regulations in 2020 to clarify and implement the ban-the-box law and integrate it with the existing criminal history usage rules in the Labor Code and then again in 2023 to further clarify and elaborate on certain requirements related to assessing applicants with criminal history, considering evidence of rehabilitation and mitigating circumstances, response deadlines, and other important issues addressed below.

Coverage

The ban-the-box law applies to employers with five or more employees.2 It does not apply to the following types of jobs:3

• Positions for which a state or local government agency is required by law to conduct a conviction history background check;
• Positions with a criminal justice agency;
• Farm labor contractors (as defined in Labor Code sec. 1685); or
• Positions in which an employer is required by any state, federal or local law (including the Securities Exchange Act) to check criminal background for employment purposes or to restrict employment based on criminal history.

The CRD regulations clarify that the ban-the-box rules apply to labor contractors and union hiring halls when selecting workers for inclusion in pool or availability lists and to client employers when selecting workers supplied by labor contractors and union hiring halls.4

The regulations also clarify that these rules apply not only for outside applicants, but also to existing employees who have applied for or indicated a desire to be considered for a different position with their current employer and to existing employees who are subjected to a review and considering of criminal history because of a change in ownership, management, policy or practice.5

Prohibited Inquiries Before a Conditional Offer

You cannot seek conviction history before a conditional job offer. Covered employers cannot:6

• Include on a job application any question that seeks the disclosure of the applicant’s conviction history at any time before a conditional offer of employment has been made.
• Include statements in job advertisements, postings, applications, or other materials that no persons with criminal history will be considered for hire, such as “No Felons” or “Must Have Clean Record."
• Inquire into or consider the conviction history of an applicant until after a conditional offer of employment has been made.

The CRD has also made it clear that if an employer’s application unlawfully asks for criminal history and the applicant does not disclose their criminal history, the employer cannot use the non-disclosure on the unlawful application as a reason to deny the applicant a job.

Restrictions After a Conditional Offer

Once you have made a conditional offer of employment, you may seek conviction history information if you follow the process and notice requirements described below.7

However, some criminal history information is off limits.

An employer generally cannot consider, distribute or disseminate information about any of the following while conducting a criminal background check in connection with a job application:8

• An arrest not followed by a conviction, except when the applicant is out on bail or their own recognizance pending trial, and except for jobs at specified health facilities;
• A referral to or participation in a pre-trial or post-trial diversion program (a criminal diversion program is a work or education program as part of probation); and
• A conviction that has been sealed, dismissed, expunged or statutorily eradicated pursuant to law. (Exceptions exist where certain employers of more sensitive jobs legally must consider specific convictions to be grounds for dismissal from the application process.)

Employers cannot use information they receive in a criminal history report to exclude employees who have any expunged, judicially dismissed or sealed conviction on their record. Rather, employers may only consider crimes that would have a direct impact on an applicant’s ability to do the job. For example, an applicant for a job with a bank could not have any prior convictions of fraud or money-laundering even if they were expunged, dismissed or sealed.

CRD regulations clarify that an individual doesn’t lose their status as an “applicant” and the corresponding rights and protections of these laws if they start work during the period of time the employer undertakes a post-conditional offer review and consideration of criminal history.9 In other words, employers cannot evade the ban-the-box requirements by making an individual an employee while they make the post-conditional offer review.

Keep in mind that the Labor Code also prohibits employers from inquiring into an applicant’s juvenile criminal history information and from using such information as a factor in determining any condition of employment, such as hiring or termination. For more information, see “Juvenile Criminal History Information” on this page.

Individualized Assessment

If you are considering denying an applicant the job due solely or in part to the applicant’s prior convictions, you must first conduct an “individualized assessment” to determine whether the conviction has a direct and adverse relationship with the specific job duties that justifies denying employment.10

You must consider, at a minimum, three factors in making this individualized assessment:11

• The nature and gravity of the offense or conduct. Consideration of this factor may include but is not limited to:
• The specific personal conduct of the applicant 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 has 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 has 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 specific duties of the job;
• 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.

• You can put the results of the individualized assessment in writing, but doing so is not required.

In addition to making an individualized assessment regarding an applicants’ criminal history, the CRD regulations specify that any policy or practice of considering criminal history information in employment decisions must account for the above factors and must be job-related and consistent with business necessity. The individual assessment requirements are also similar to the federal Equal Employment Opportunity Commission’s 2012 “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions.” For more information, see “Criminal History Information and Discrimination” on this page.

Notice Requirements

The statewide ban-the-box law contains specific notice requirements that must be met if you plan to deny someone a job because of conviction history. Sometimes referred to as a “fair chance” process, it kicks in after the individualized assessment occurs.

• If you intend not to hire someone because of a criminal conviction, two separate written notices will be required.

Preliminary Notice of Decision to Withdraw Employment Offer

Any preliminary decision not to hire the applicant because of a conviction history requires a written notice to the applicant who must be given the opportunity to respond.12 You must consider any response.

The written notice to the applicant must contain all of the following:

• The identity of the disqualifying conviction(s) that are the basis for the preliminary decision to rescind the conditional job offer. You have the option, but are not required, to provide an explanation for your preliminary decision;
• A copy of the conviction history report, if any;
• An explanation of the applicant’s right to respond to the notice before a final decision is made;
• The deadline for the applicant’s response (must provide at least five business days); and
• An explanation informing the applicant that the response can include evidence challenging the accuracy of the conviction history report and/or evidence of rehabilitation or mitigating circumstances.

• Notice of Preliminary Decision to Withdraw Employment Offer - Criminal History Only
• Notice of Preliminary Decision to Withdraw Employment Offer - Criminal History Only - Spanish

The applicant has at least five business days from the date they received the written notice to respond before you can make a final decision. If within the five business days the applicant notifies you in writing that the applicant disputes the conviction history report’s accuracy and is taking steps to obtain evidence, then you must give the applicant an additional five days to respond.

For the purpose of establishing 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.13 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 for 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.

CRD regulations specify that applicants may challenge the accuracy of the conviction history, and/or may offer evidence of rehabilitation or mitigating circumstances.14 Evidence that may show rehabilitation or mitigating circumstances include, but is not limited 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.
• 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 individual is bonded under 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 that the applicant can provide may include, but is not limited to, 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, co-workers, parole or probation officers, or others who know the applicant.
• Police reports, protective orders, and or documentation from healthcare 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.

Additionally, though employers are generally prohibited from considering a referral to or participation in a pretrial or post-trial diversion program when making employment decisions, they can consider these programs as evidence of rehabilitation or mitigating circumstances.

CRD regulations specify several employer prohibitions during this process.15 For example, employers cannot refuse to accept additional evidence voluntarily provided by an applicant, or by another party at the applicant’s request, at any stage of the hiring process (including prior to making a preliminary decision to rescind the applicant’s job offer).

Employers may not require an applicant to submit any of the additional evidence at any time in the hiring process, nor can they require an applicant to provide a specific type of documentary evidence (e.g., a police report as evidence of domestic or dating violence) or disqualify an applicant from the employment conditionally offered for failing to provide any specific type of documents or other evidence.

Employers cannot require an applicant to disclose their status as a survivor of domestic or dating violence, sexual assault, stalking, or comparable statuses. Additionally, employers may not require an applicant to produce medical records and/or disclose the existence of a disability or diagnosis.

You are required to consider information submitted by the applicant before making a final decision about whether to hire the applicant.

CRD regulations specify that when you are considering evidence of rehabilitation or mitigating circumstances provided by an applicant, in addition to the individualized assessment factors discussed above, the employer can consider the following:

• When the conviction led to incarceration, the applicant’s conduct during incarceration including participation in work and educational or rehabilitative programming and other prosocial conduct;
• The applicant’s employment history since the conviction or completion of sentence;
• The applicant’s community service and engagement since the conviction or completion of sentence, including but not limited to volunteer work for a community organization, engagement with a religious group or organization, participation in a support or recovery group, and other types of civic participation; and/or
• The applicant’s other rehabilitative efforts since the completion of sentence or conviction or mitigating factors not captured in the above subfactors.

Final Notice of Decision to Withdraw Employment Offer

If you make a final decision not to hire the applicant based in whole or in part on the conviction history, you must again give written notice to the applicant.16 The following must be included in the employer’s final determination notice:

• The final denial or disqualification. You may provide an explanation for your final decision, but it is not required.
• Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration.
• The applicant’s right to file a complaint with the CRD.

• Notice of Final Decision to Withdraw Employment Offer - Criminal History Only
• Notice of Final Decision to Withdraw Employment Offer - Criminal History Only - Spanish

• Employers must carefully follow the fair chance process outlined by the California ban-the-box law. In addition, comply with all Fair Credit Act requirements. For more information, see Obtaining Investigative Consumer Report.

Other Rules Limiting Use of Criminal History in Employment Decisions

The ban-the-box law deals with considering criminal history during hiring, but other restrictions on criminal background checks also exist.

Under California’s Labor Code, the following general rules limit the use of criminal history information in any kind of employment decision, not just hiring, and apply to all California employers (not just those with five or more employees).

• As with hiring, certain types of criminal information can never be sought or used as a factor in determining any condition of employment, including decisions related to promotion, training, discipline, layoff and termination.17

When making decisions about any condition of employment, you generally cannot seek or use information about:18

• Arrests or detentions not resulting in conviction (except when the employee is out on bail or out on their own recognizance pending trial)
• Information concerning a referral to or participation in a pre-trial or post-trial criminal diversion program
• Convictions for most marijuana possession offenses more than two years old
• Convictions that have been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to law
• Juvenile criminal history information

A “conviction,” as defined in the California Labor Code, includes a plea, verdict or finding of guilt, regardless of whether a sentence was imposed by the court.19 A conviction does not include any adjudication by a juvenile court.20

Like the ban-the-box rules, the ban on using conviction history to make employment decisions has exceptions for jobs where the employer is required by law to obtain the information, as well as for other jobs such as peace officers, health care employees, and people with access to drugs and medication.21

The law limits employer inquiries to “particular convictions” where conviction of a crime would legally prohibit someone from holding that job.22

If there is a discrepancy between background reports, employers should investigate before making any employment decisions. In one case, an employee did not disclose a dismissed conviction on her job application (before ban-the-box law barred the inquiry on job applications). The employee passed the employer’s criminal background check and had been working for the company for a month when the Department of Motor Vehicles mistakenly reported that the employee had an active criminal conviction. Rather than investigate the discrepancy between reports, the employer terminated the employee for “falsification of a job application” even after the employee explained that the conviction had been dismissed. The DMV issued a correct notice three weeks later, but the employee was not rehired.

The trial court granted the employer’s motion for nonsuit, finding that the employer didn’t have knowledge that the conviction had been dismissed at the time it made its decision to terminate. However, the Court of Appeal reversed and allowed the case to proceed.23

The court found it particularly troubling that the employer didn’t do any investigation into the circumstances around the discrepancy. The employer argued that it did nothing wrong because it had no knowledge that the conviction had been dismissed at the time it made its decision to terminate, but the court rejected that argument, finding that the conflicting reports and the employee’s explanation served to put the employer on notice that the conviction had been dismissed and, thus, the employer should have investigated. The court concluded that the employer’s rush to terminate without investigating the issue supports the inference that the employer knew the employee could be telling the truth and that the termination was pretextual, that is, instead of terminating for falsifying a job application, the employer really terminated the employee for the unlawful reason of not disclosing a dismissed conviction.

Juvenile Criminal History Information

All employers are prohibited from inquiring about an applicant’s juvenile criminal history and from using such information as a factor in determining any condition of employment, such as hiring or termination.24

Even if an applicant volunteered their juvenile criminal history, the employer may not use that information to deny employment if the applicant was a minor at the time the felony was committed.

Health care facilities can inquire into an applicant’s juvenile criminal history if a juvenile court found that the applicant committed felony or misdemeanor sexual offenses or certain controlled substance crimes within five years before applying for the job.25 Sealed juvenile criminal records are still off-limits. This exception applies to health facilities as defined in Health and Safety Code sec. 1250.

If you are a health facility seeking disclosure of this history, you must provide the applicant with a list describing the specific offenses you want disclosed.

Criminal History Information and Discrimination

To avoid liability under state and federal anti-discrimination laws, 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 — unless the employer can prove the information is job-related and consistent with business necessity. To establish that the practice is job-related and consistent with business necessity, an employer needs to show that the policy or practice is appropriately tailored, taking into account the same factors as the ban-the-box rules:

• The nature and gravity of the offense or conduct;
• The time that has passed since the offense or conduct and completion of the sentence; and
• The nature of the job held or sought.

All of the CRD criminal history regulations can be found on the CRD website Civil Rights Department (CRD).

The FEHA regulations emphasize that consideration of criminal history information has the potential to adversely impact individuals in a protected class, such as those of a particular race, national origin or gender. The regulations are similar to federal EEOC Guidance that also discusses how an employer’s use of an individual’s criminal history in making employment decisions could violate prohibitions against employment discrimination.

California’s criminal history regulations first became effective in 2017. They apply to all employment decisions and contain a detailed process that must be followed if criminal convictions are going to be considered during employment decisions. The interaction between the initial FEHA regulations and the subsequent ban-the-box law caused confusion for employers; however, the CRD issued revised regulations, effective October 2020, which, to a great extent, integrate and clarify California’s complicated rules for using criminal history in the employment context.

Keep in mind that under both state and federal law, you have a better chance of defending any type of criminal background check policy or practice if you can demonstrate that the practice is job-related and consistent with business necessity. Look at whether your policy or practice bears a demonstrable relationship to successful performance in both the job and the workplace, and measure the person’s fitness for the specific position at issue. A policy or practice that excludes everyone with a criminal record will not be job-related and consistent with business necessity.

Also determine if a less discriminatory alternative can help you achieve your goals. Are there better predictors of risk or job qualifications than a criminal background check?

Again, some employers must comply with federal or state laws that prohibit employment of individuals with certain criminal records in particular jobs. And for certain positions or occupational licenses, a criminal background check may be legally mandated. Examples include peace officers and those in health care facilities with regular access to patients or controlled substances. In these situations, employers that must comply with a federal or state law generally can use the compliance mandate to defend themselves against any adverse impact claim.

Local Fair Chance Ordinances

Some local governments, such as San Francisco and Los Angeles City, have enacted their own versions of the ban-the-box law. These “Fair Chance” ordinances include other prohibitions and requirements related to obtaining and using criminal background information. Visit HRCalifornia’s San Francisco Fair Chance Ordinance and Los Angeles City Fair Chance Initiative pages for more information.

Employers covered by a local fair chance ordinance will need to comply with both state and local law.

• Check to see if any local ordinance governs the use of criminal background information in places where you conduct business or where employees are located. Use job applications that comply with the local ordinance requirements.

Best Practices Relating to Criminal History Information

Employers can take the following steps to help them navigate state and federal law:

• Make sure job advertisements, postings, applications or other materials do not have any statements explicitly stating or inferring that individuals with criminal history will not be considered for hire, such as “Must have clean record” or “No Felons.”
• Eliminate job application forms, policies and practices that contain a criminal history “check box” or that automatically disqualify applicants because of a criminal record.

• A job application form that asks about criminal history is against the law in California. If you have a multi-state operation, be careful not to rely on applications from other states because they may not comply with California law.

CalChamber’s Employment Application - Long Form and Employment Application - Short Form comply with California criminal history restrictions.

• Employment Application - Long Form
• Employment Application - Long Form - Spanish
• Employment Application - Short Form
• Employment Application - Short Form - Spanish

• Never ask for criminal history information — or seek the information from any other source — before a conditional offer of employment.
• Identify essential job requirements and the circumstances under which they are performed; determine specific criminal offenses that may demonstrate an individual is unfit to perform these job requirements; determine how far back in time you need to look (i.e. would a conviction be less relevant to the job it if occurred five years ago). This will help you in making an individualized assessment. Consider conducting this review with your legal counsel. Update job descriptions as necessary.
• Comply with the individualized assessment and notice requirements in the ban-the-box law.
• Comply with any requirements you have under the Fair Credit Reporting Act. For more information, see Obtaining Investigative Consumer Report.
• Keep meticulous records. Maintaining detailed reports on applicants, offers of employment, background check results, written notifications and final hiring decisions can help you defend your criminal background check process.
• If you make employment decisions based on criminal history (after following all the required assessment and notice procedures), examine whether your policies or practices are having a disparate impact on persons in a protected class.

• Keep information about criminal records confidential. Periodically review any background check results to ensure that they are not having a discriminatory impact on any protected classes, and retain records demonstrating the fairness of all hiring practices.

• If there is a discrepancy between criminal background reports, investigate the circumstances before making an employment decision.
• Train managers and anyone involved in the hiring process on the law.
• Check to see if any local ordinances also apply.

Penalties

An employer who improperly obtains or uses criminal history information can be subject to a civil lawsuit. An applicant can bring an action to recover actual damages or $200, whichever is greater, plus costs and reasonable attorneys’ fees. If the violation is intentional, the applicant is entitled to treble (three times) actual damages or $500, whichever is greater, plus costs and reasonable attorneys’ fees. In addition, an intentional violation is a misdemeanor punishable by a fine not to exceed $500.26

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.

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1. Gov’t. Code sec. 12952

2. Gov’t. Code sec. 12952(a)

3. Gov’t. Code sec. 12952(d)

4. 2 CCR sec. 11017.1(d)

5. 2 CCR sec. 11017.1(j)(1)

6. Gov’t. Code sec. 12952(a)

7. Gov’t.Gov’t. Code sec. 12952 (b)

8. Gov’t.Gov’t. Code sec. 12952(a)(3); Lab. Code sec. 432.7

9. 2 CCR sec. 11017.(j)(1)

10. Gov’t. Code sec. 12952 (c)(1)

11. 2 CCR sec. 11017.1(c)(1)(B)

12. Gov’t. Code secs. 12952(c)(2)-(4)

13. 2 CCR sec. 11017.1(c)(2)(E)

14. 2 CCR sec. 11017.1(c)(2)(D)

15. 2 CCR sec. 11017.1(c)(2)(D)(iii)

16. Govt. Code sec. 12952(c)(5)

17. Lab. Code sec 432.7 (a)

18. Lab. Code secs. 432.7, 432.8

19. Lab. Code sec. 432.7(a)(1)

20. Lab. Code sec. 432.7(a)(3)

21. Lab. Code sec. 432.7(b) et. seq.

22. Lab. Code sec. 432.7

23. Garcia-Brower v. Premier Auto. Imports of CA, LLC, No. A156985 (Cal. Ct. App. Oct. 15, 2020)

24. Lab. Code sec. 432.7 (a)(2)

25. Lab. Code sec. 432.7 (f)(2)

26. Lab. Code sec. 432.7