California Laws on Employer Use of Arrest and Conviction Records
Learn about California and federal protections for applicants with criminal records.
If you are among the estimated one in four Americans with a criminal record, you might face an uphill battle in your job search. Surveys show that a majority of employers—92%, according to one survey—perform criminal background checks when hiring for at least some positions. If a prospective employer finds out that you have an arrest or conviction record, you might find it difficult to compete, especially in today’s tight job market.
Job seekers with criminal records have some legal rights. Federal and state laws place some limits on how employers can use these records in making job decisions. California has a number of legal protections in place for job seekers.
California Protections for Job Seekers With Criminal Records
State laws provide a variety of protections for job seekers with criminal records. California places more restrictions on employers than many other states. For example, California employers may not ask applicants about:
- Arrest records. Employers may not ask an applicant about prior arrests that did not lead to convictions or seek or use records related to such arrests. Employers may ask applicants about arrests that did lead to conviction and arrests for which the applicant is awaiting trial (for example, because the applicant is out on bail or has been released on his or her own recognizance pending trial).
- Diversion programs. Employers may not ask about an applicant's referral to or participation in a pretrial or post-trial diversion program.
- Sealed records. Employers may not ask about convictions that have been sealed, expunged, or statutorily eradicated.
- Certain marijuana offenses. Employers are prohibited from asking about minor marijuana convictions that are more than two years old.
- Juvenile records. Beginning on January 1, 2017, employers may not ask applicants about juvenile records relating to arrest, detention, processing, or adjudication while the applicant was subject to the juvenile court system. California does not consider juvenile court decisions to be "convictions" that employers could otherwise inquire about.
California also has a "ban the box" law, which limits public employers from asking applicants about criminal history on an initial job application. This law does not apply to private employers. However, certain cities have similar rules that do apply to private employers. For example, San Francisco prohibits employers with 20 or more employees from asking an applicant about criminal history until after an in-person interview or until after a conditional offer of employment has been made.
Federal Protections for Applicants With a Criminal Record
Two federal laws provide further protections to applicants with criminal records across the nation, at least in some situations.
The Fair Credit Reporting Act
The Fair Credit Reporting Act (FCRA) addresses the problem of accuracy. Criminal background checks may include errors, such as information on convictions that have been expunged, incomplete information (for example, failing to report that the person was exonerated of a crime or that charges were dropped), misclassification of crimes, multiple listings of the same offense, and even records that belong to someone else entirely.
The FCRA imposes obligations on employers that request criminal background checks and on the firms that provide them. Employers must do all of the following:
- Get the applicants written consent ahead of time.
- Tell the applicant if the employer intends to disqualify him or her based on the contents of the report. The employer must also give the applicant a copy of the report.
- Notify the applicant after the employer makes a final decision not to hire him or her based on the information in the report.
Firms that run background checks also have obligations under the FCRA. They must take reasonable steps to make sure that the information they provide is accurate and up to date. If an applicant disputes the contents of the report, the agency must conduct a reasonable investigation. If the investigation reveals that the report was incorrect, the agency must inform the applicant and any other person or company to whom it has provided the report. California law also prohibits consumer reporting firms from reporting arrest and conviction records more than seven years old.
Title VII of the Civil Rights Act
Title VII of the Civil Rights Act of 1964 protects applicants and employees from discrimination in every aspect of employment, including screening practices and hiring. Because arrest and incarceration rates are so much higher for African Americans and Latinos, an employer that adopts a blanket policy of excluding all applicants with a criminal record might be guilty of race discrimination.
The Equal Employment Opportunity Commission (EEOC) has issued guidance explaining how employers can screen out applicants whose criminal records pose an unreasonable risk without engaging in discrimination. In deciding whether a particular offense should be disqualifying, employers must consider:
- the nature and gravity of the criminal offense or conduct
- how much time has passed since the offense or sentence, and
- the nature of the job (including where it is performed, how much supervision and interaction with others the employee will have, and so on).
And, the EEOC has said that employers should give applicants with a record an opportunity to explain the circumstances and provide mitigating information showing that the employee should not be excluded based on the offense.