What are the California rules on asking job applicants or employees about arrests and convictions?

The  rules in California for making inquiries into an applicant or employee's criminal history records are governed by the California Fair Employment and Housing Act (FEHA), the California Fair Chance Act and the California Labor Code.

Pre-Offer

California employers with five or more employees are prohibited from asking applicants about criminal history or including criminal-history questions on job applications, with very limited exceptions. Employers must generally wait until after an offer of employment has been made before making any inquiries into an individual's criminal background. If an applicant voluntarily offers information about their criminal history prior to receiving a conditional offer, the employer still cannot consider such information.

Employers cannot include statements in job advertisements, postings, applications, or other materials that persons with criminal history will not be considered for hire.

Post-Offer

After an offer of employment has been extended and accepted, employers are permitted to make inquiries about certain criminal convictions. However, significant requirements apply to ensure an employer's policies and practices do not adversely impact individuals in a protected class under FEHA. These rules apply to all employers in California regardless of size.

When making hiring or other employment decisions, such as those involving promotions, training, discipline, layoffs and terminations, employers may not consider the following information:

• An arrest or detention that did not lead to a conviction.
• Participation in a pretrial or post-trial diversion program.
• A conviction that's been dismissed, sealed, expunged or statutorily eradicated.
• An arrest, detention or other proceeding that occurred while subject to juvenile-court law.
• A nonfelony conviction for possessing marijuana when the conviction is two or more years old.

There are exceptions for employers in certain industries to seek and use information relating to certain arrests or convictions that might otherwise be prohibited.

Individualized Assessment

When making employment decisions based on criminal history, employers must conduct an individualized assessment of the circumstances that includes the following factors:

• The nature of the offense.
• The time that has elapsed since the offense or completion of the sentence.
• The nature of the job.

Effective Oct. 1, 2023, new Fair Chance Act regulations provide a list of sub-factors that employers must consider at a minimum as part of the individualized assessment, including:

• 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 contributed to the offense or conduct.
• Whether trauma, domestic or dating violence, sexual assault, stalking, human trafficking, duress, or other similar factors contributed to the offense or conduct.
• The age of the applicant when the conduct occurred.
• The amount of time that has passed since the conduct underlying the conviction, which may significantly predate the conviction itself.
• The amount of time that has passed since the applicant's release from incarceration.
• The specific duties of the job, including whether the context in which the conviction occurred is likely to arise in the workplace and whether the type or degree of harm that resulted from the conviction is likely to occur in the workplace.

To demonstrate that the employer's decision is job-related and consistent with business necessity, the company must either:

• Establish that any "bright-line" rule disqualifying candidates with certain criminal convictions exists because of an unacceptable level of risk in that job and because the conviction has a direct negative bearing on the person's ability to perform the job.
• Review the individual job applicant's report and give the applicant an opportunity to explain why a conviction shouldn't bar him or her from consideration for the job.

Notice Requirements

Before an employer takes an adverse action, it must notify the individual of the disqualifying conviction. The written notice must include the following:

• An explanation of the disqualifying conviction or convictions that are the basis for the employer's decision.
• A copy of the conviction history report utilized or relied on by the employer.
• An explanation of the individual's right to respond to the notice before a final decision is made and the deadline by which to respond (which can be no less than five business days from the date of receipt of the notice).
• An explanation that the individual's response may include submission of evidence challenging the accuracy of the conviction history report that is the basis for the employer's decision, evidence of rehabilitation or mitigating circumstances, or both.

See Fair Chance Act Sample Forms.

Individuals must be provided with at least five days to respond to the preliminary notice before a final decision is made. When an employer makes a final decision based on an individual's criminal history, a final written notice must be provided that includes:

• The final denial or disqualification decision reached. The employer may also include, but is not required to include, the justification or an explanation of the employer's reasoning for reaching the decision that it did.
• Any procedure the employer has for the applicant to challenge the decision or request reconsideration.
• The right to contest the decision by filing a complaint with the California Civil Rights Department.

Employers must be sure to comply with federal Equal Employment Opportunity Commission guidance and any local requirements as well.

See:

FEHA Regulation §11017.1. Consideration of Criminal History in Employment Decisions

CA Labor Code 432.7

CA Government Code 12952

Fair Chance Act: Guidance for California Employers and Job Applicants