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August 3, 2021

Best Practices: Background Checks: Criminal Conviction History – California

In California, fair chance or Ban-the-Box laws restrict an employer from asking about an applicant’s criminal background history in the early stages of the hiring process. And while there is no federal Ban-the-Box law that applies to private sector employers, California’s Fair Chance Act prohibits private sector employers with five or more employees from inquiring into or considering an applicant’s conviction history until after a conditional offer of employment has been made. Specifically, prior to making a condition offer of employment, employers are prohibited from considering, distributing, or disseminating information relating to:

  • Arrests that do not result in a conviction
  • Participation in a diversion program
  • Convictions that have been sealed, dismissed, expunged, or statutorily eradicated; or
  • Any conviction for which the convicted person has received a full pardon or has been issued a certificate of rehabilitation.

Criminal records are considered consumer reports. Employers who have made a conditional offer of employment and have provided all requisite notices concerning the use of consumer reports, may make inquiries concerning the applicant’s criminal background history.

Employers may not revoke a conditional job offer based on an applicant’s criminal history without initiating the required notice process. California Ban-the-Box laws do not apply to an applicant for a position:

  • With a state or local agency that requires it by law.
  • With a criminal justice agency.
  • As a farm labor contractor.
  • Where the employer is required by federal, state, or local law or regulation to:
    • conduct criminal background checks; or
    • restrict employment based on criminal history.

Check in with us next week for additional Ban-the-Box best practices and tips for revoking a conditional offer of employment.