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. Fortunately, job seekers with criminal records have some legal rights under California and federal law.

Arrest and Conviction Records

California provides a variety of protections for job seekers with criminal records. For example, California employers may not ask about or consider the following:

  • 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 non-felony convictions for marijuana possession that are more than two years old.
  • Juvenile records. 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.

While California does have a "ban-the-box" law, prohibiting employers from asking applicants about criminal history on a job application, it only applies to government employers. However, some cities have similar rules that 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.

Background Check Rules

If an employer wants to order a criminal background check from a third party, it must comply with the federal Fair Credit Reporting Act (FCRA). Among other things, the FCRA requires employers to get the applicant’s written consent beforehand and provide certain notices if the employer decides not to hire the applicant based on the contents of the report. (To learn more about the FCRA, see our article on getting hired with an arrest or conviction record.)

California has a similar law to the FCRA, requiring employers to obtain written consent and give notice to the applicant before deciding not to hire him or her based on the information in the report. California law also prohibits consumer reporting firms from reporting arrest and conviction records that are more than seven years old.

In general, these laws apply when an employer hires a third party to conduct the background check, not when it conducts the investigation in-house. However, California has an exception for public records searches. Any employer that searches public records as part of a background check must follow certain steps, including supplying a copy of the record to the applicant within seven days.

Antidiscrimination Laws

Federal and California employment laws prohibit most employers from discriminating against applicants based on certain characteristics, such as race and ethnicity. Because arrest and incarceration rates are disproportionately 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. (See our article on California employment discrimination laws for more information.)

The Equal Employment Opportunity Commission (EEOC), the agency that enforces federal discrimination laws, 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).

According to the EEOC, employers should also give applicants with a criminal record an opportunity to explain the circumstances and provide mitigating information showing that the employee should not be excluded based on the offense.

The California Fair Employment & Housing Council, the agency that enforces state discrimination laws, has also issued guidance for employers on how to avoid discrimination when considering an applicant’s criminal record. If an employer’s practice of considering criminal history has an adverse impact on a protected class, it must be job-related and consistent with business necessity. In general, this means that the employer’s policy must actually consider whether the criminal history would make the applicant unfit for the position or would pose an unacceptable level of risk. If the employer learned about a conviction from any source other than the applicant, it must provide notice to the applicant and a reasonable opportunity for the applicant to show the conviction is inaccurate.

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