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Criminal history and employment

On Behalf of | May 12, 2022 | Employment Law

California joined other states in 2018 by implementing a ban the box law that prohibits employers from asking job applicants about their criminal history. This helps reduce barriers and gives a fresh start to individuals with conviction histories and allows them to seek family sustaining jobs.

Fair Chance Act

The Fair Chance Act is contained in California’s Fair Employment and Housing Act that governs many employment law and employment disputes.

The law prohibits:

  • Job application questions about criminal history before a conditional job offer was made.
  • Asking about or considering a criminal history before a job offer was made.
  • Consideration of information about arrests not leading to conviction, completed pretrial or posttrial diversion programs and the charges that were dismissed, sealed, or eradicated or convictions that were sealed, dismissed, expunged, or legally eradicated.

Employers may check criminal histories after a job offer is made. But there must be an individualized assessment about the conviction history involving the nature and seriousness of the history, time elapsed since the conviction and the job being sought.

Employers who violate the law before making a conditional offer of employment may not, after extending a conditional job offer, use an applicant’s lack of disclosure on the application in later employment decisions. These decisions include denial of a position that was conditionally offered.

Covered employers

The law covers public and private employers with at least five employees including union hiring halls, labor contractors, temporary employment agencies and client employers.

Exempt jobs include:

  • Specific positions at health care facilities.
  • Farm labor contractors.
  • California criminal justice agency positions.
  • Any position where an employer is legally required to conduct background checks or restrict employment based on criminal history.

Excluded employers can be challenged if their use of the criminal history was discriminatory. These employers must show that consideration of the history is job related, relates to job necessity and there are no less discriminatory measures to meet business necessity.

Retracted offers

If the job offer is retracted, the business must provide a copy of the reviewed criminal history and provide at least five business days for a response. Employers have to notify the applicant of factors that can be part of their response such as rehabilitation, report accuracy, employment history and any circumstances surrounding the conviction.

Employers must consider the applicant’s response. If the applicant is still disqualified, the employer has to provide written notification, the applicant’s right to challenge that disqualification and their right to file a complaint with the state Department of Fair Housing and Employment.

Workers may file a complaint with the DFEH within three years. They can also obtain legal representation to help protect their rights.