A criminal record or a routine background check can feel like an automatic barrier to getting hired, but California places real limits on how employers use this information. State law is designed to give applicants a fair chance to be judged on their qualifications first, and it restricts when and how criminal history can enter a hiring decision. Knowing these rules helps an applicant recognize when an employer has stepped outside them and understand what to expect during the process.
The Fair Chance Act in Brief
California’s Fair Chance Act, often called ban the box, applies to employers with five or more employees and changes the order in which criminal history can come up during hiring. The law generally prohibits asking about conviction history on a job application or at any point before making a conditional offer of employment. The premise is that an applicant should first be evaluated on skills and experience, and only after an offer is on the table can the employer look into criminal history. This does not mean an employer can never consider a conviction, but it does mean the timing and the process are regulated.
When an Employer Can Ask About Convictions
Once a conditional offer has been made, an employer may ask about and consider conviction history, but it cannot simply withdraw the offer on that basis without following specific steps. If the employer is considering rescinding the offer because of a conviction, it must first conduct an individualized assessment rather than applying a blanket rule against anyone with a record. Certain information stays off-limits regardless of timing, and an employer cannot consider it even after a conditional offer. The structure is meant to prevent a single item on a record from ending a candidacy automatically, without any consideration of the surrounding circumstances.
How the Individualized Assessment Works
The individualized assessment requires the employer to weigh the specific facts rather than reacting to the existence of a conviction. That includes the nature and seriousness of the offense, how much time has passed since it occurred, and whether it has any real bearing on the duties of the job. If the employer makes a preliminary decision to withdraw the offer, it must notify the applicant in writing, identify the conviction at issue, and give the applicant a chance to respond, generally at least five business days. The applicant can use that time to provide evidence of rehabilitation, dispute the accuracy of the record, or explain mitigating circumstances, and the employer has to consider that response before reaching a final decision.
Records That Cannot Be Considered
Some categories of information are simply out of bounds in hiring decisions. Employers generally cannot consider an arrest that did not lead to a conviction, participation in a diversion program, or convictions that have been sealed, dismissed, expunged, or otherwise eradicated. Certain older or non-conviction items are likewise excluded. When an employer bases a decision on information it was not permitted to use, that can be a violation of state law, separate from any problem with the timing or the assessment. These limits reflect the reality that not every entry on a record represents a conviction or remains legally relevant.
Third-Party Background Check Reports
When an employer uses an outside company to run a background check, additional rules apply under both federal and California law. The employer must disclose that a report will be obtained and get the applicant’s written authorization first. If the employer intends to take an adverse action based on the report, such as denying the position, it has to provide a copy of the report and a notice that lets the applicant review it and dispute errors before the decision becomes final, followed by a further notice once it does. Background check reports sometimes contain mistakes or outdated information, so this right to see the report and respond is an important safeguard.
Knowing Your Rights as an Applicant
California’s approach to background checks gives applicants a meaningful opportunity to be considered on their merits before a record comes into play, and a structured process if it does. The basic sequence is what an applicant most needs to recognize: conviction questions generally cannot come before a conditional offer, a withdrawal based on a record requires an individualized assessment with a chance to respond, and certain records cannot be used at all. A related protection worth noting is that California employers generally cannot ask about salary history, a rule meant to keep past pay from limiting future offers. When an employer appears to have ignored these requirements, an applicant can file a complaint with the California Civil Rights Department.