California Law on Employer Use of Criminal Background Checks

California’s “ban the box” law protects job applicants with criminal records.

By , Attorney ● UCLA School of Law
Updated 9/14/2023

If you are among the estimated one in three Californians with a criminal record, you might worry about how it will affect your job search. Surveys show that a majority of employers perform criminal background checks when hiring for at least some positions.

It's also common for employers to ask about criminal history on a job application, often ending the hiring process for many applicants before it has begun. Fortunately, job seekers with criminal records have some strong protections under California law.

Can California Employers Consider Criminal History in Hiring?

Under California's Fair Employment and Housing Act (FEHA), also known as a "ban the box" law, it is illegal for private and public employers with five or more employees to ask about criminal history until the later stages of the job application process (Ca. Gov. Code § 12900 (2023)).

The purpose of the law is to encourage employers to assess each applicant's fitness for a job, rather than categorically denying employment to those with a criminal past. The law sets out a series of detailed requirements that employers must comply with before considering a job candidate's criminal history or rejecting an applicant based on that history.

Before a Conditional Offer of Employment

As its nickname suggests, the "ban the box" law requires employers to remove a question that is commonly found on employment applications: "Have you ever been convicted of a felony?" Applicants can no longer be asked to check a box "yes" or "no" in response to this question.

In fact, California employers cannot ask about, look into, or consider criminal history at all until the applicant has received a conditional offer of employment. The law prohibits employers from inquiring about criminal history using background checks, questions on job applications, internet searches, or in any other manner.

In addition, employers may not include statements in job postings, advertisements, or other materials indicating that they will not consider job applicants with a criminal history. For example, employers are prohibited from using language such as "must have clean record" or "no felons" in job listings.

If an applicant volunteers information about their criminal history before receiving a job offer, the employer may not consider that information until after making an offer.

If an employer violates the law by asking about an applicant's criminal history before making an offer, and the applicant fails to disclose their criminal history at that point, the employer can't refuse to hire the applicant based on that failure. The employer is also prohibited from making any other employment decisions based on that failure.

There are a few limited exceptions to these rules, such as when the employer is a criminal justice agency or a state or local agency required by law to conduct a criminal background check.

After a Conditional Offer of Employment

Once the employer makes a conditional offer of employment, it may ask about and consider the applicant's conviction records. Some records, including arrest records that did not lead to conviction, are off limits at any point in the hiring process (see "Criminal Records That Employers May Never Consider," below).

However, before denying employment based on a conviction record, the employer must conduct an "individualized assessment"—a reasoned, evidence-based determination as to whether the applicant's past conviction has a direct and adverse relationship with the specific job duties of the position. At a minimum, the employer must consider three factors in conducting the individualized assessment.

First, the employer must consider the nature and severity of the offense. In considering this factor, the employer may take into account things like:

  • the specific personal conduct of the applicant that resulted in the conviction,
  • whether the harm was to property or people,
  • the degree and permanence of the harm,
  • the context in which the offense occurred,
  • whether a disability (including past drug addiction or mental impairment) contributed to the offense or conduct and, if so, the likelihood of harm arising from similar conduct,
  • whether trauma, domestic or dating violence, sexual assault, stalking, human trafficking, duress, or other similar factors contributed to the offense or conduct, and
  • the age of the applicant when the conduct occurred.

Second, the employer must consider how long it's been since the applicant committed the offense and served the sentence. In considering this factor, the employer may take into account things like:

  • the amount of time that's passed since the conduct underlying the conviction (this conduct may have occurred long before the conviction itself), and
  • if the conviction led to incarceration, how much time has passed since the applicant's release from incarceration.

Third, the employer must consider the nature of the job for which the applicant is applying. In considering this factor, the employer may take into account things like:

  • the specific job duties,
  • whether the circumstances surrounding the offense are likely to occur in the workplace, and
  • whether the type or degree of harm caused by the offense is likely to occur in the workplace.

For example, suppose an applicant has a conviction related to prescription drug abuse from five years ago, but has completed rehab and been sober since. Depending on the circumstances, the conviction might be a reason to deny employment for a position at a pharmacy but not for a position at a call center.

If a licensing, regulatory, or government agency or board confers a right, privilege, or benefit on the applicant that is required to do the job at issue, this tends to prove that the applicant's conviction history is not directly and adversely related to the specific duties of the job. For example, if an applicant has received a teaching credential from the state commission on credentialing, this is evidence that the applicant's conviction history is not directly and adversely related to the specific duties of a job as a credentialed teacher.

Providing Notice and an Opportunity to Respond

If, after completing the individualized assessment, the employer reaches a preliminary decision not to hire the applicant, the employer must provide the applicant with written notice of the decision and give the applicant an opportunity to respond. The notice must:

  • specify the conviction that was the basis for the decision,
  • provide a copy of any written information related to the conviction history that the employer relied on to reach its decision (for example, public records, consumer reports, news articles, and results of internet searches),
  • provide notice of the applicant's right to challenge the accuracy of the information that was the basis for the employer's decision, or to provide evidence of rehabilitation or mitigating circumstances, or both, and
  • give the applicant at least five business days to respond to the notice (but if the applicant notifies the employer in a timely manner that the applicant is taking steps to gather evidence, the applicant must be given an additional five business days to respond).

It is up to the applicant to decide whether to submit evidence in response to the employer's notice; any such evidence must be voluntarily submitted. Employers may not refuse to accept any additional evidence voluntarily submitted by the applicant at any stage of the hiring process.

California law is very broad with respect to the type of evidence an applicant may submit in response to an employer's notice. Examples of evidence of rehabilitation or mitigating circumstances the employer may consider include, but are not limited to:

  • the applicant's current or former participation in self-improvement efforts, including school, job training, counseling, community service, and rehabilitation programs, including in-custody programs,
  • the facts or circumstances surrounding the offense, and
  • successful completion, or compliance with the terms of, parole or probation.

For example, the applicant might submit evidence of completion of a drug rehabilitation program or the applicant's efforts to make amends for the crime.

In considering the applicant's evidence of rehabilitation or mitigating circumstances, the employer may take into account all of the same factors it's required to consider in conducting the individualized assessment, as well as the following factors:

  • if the conviction led to incarceration, the applicant's conduct during incarceration, including participation in work and educational or rehabilitative programming and other prosocial conduct,
  • the applicant's employment history since the conviction or completion of sentence, and
  • the applicant's community service and engagement since the conviction or completion of sentence, including volunteer work for a community organization, engagement with a religious group or organization, participation in a support or recovery group, and other types of civic participation.

Notice of the Final Decision

The employer must consider any information provided by the applicant before making a final decision. If the final decision is to deny employment, the employer must provide written notice of this decision.

The notice must include information regarding any procedure the employer has for the applicant to challenge the decision and the right to contest the decision by filing a complaint with the California Civil Rights Department.

Criminal Records That Employers May Never Consider

In California, certain types of criminal records are off limits for employers. Employers may not ask about or consider the following at any time during the hiring or employment process, even if voluntarily provided by the applicant:

  • 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 (unless offered by the applicant after the conditional offer as evidence of rehabilitation or mitigating circumstances).
  • Dismissed convictions. Employers may not ask about convictions that have been judicially dismissed or ordered sealed, expunged or statutorily eradicated, or any convictions for which the applicant has received a full pardon or has been issued a certificate of rehabilitation.
  • 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.

Rules Against Discrimination In Considering Criminal History

Federal and California employment laws prohibit most employers from discriminating against applicants based on certain protected characteristics, such as race, gender, and national origin.

Because arrest and incarceration rates are disproportionately higher for African American and Latino men and women, an employer that adopts a blanket policy of excluding all applicants with a criminal record might be guilty of race discrimination.

Under California law, an employer's criminal history policies or practices are considered discriminatory under FEHA if they result in a significant difference in the rate of selection in hiring, promotion, or other employment decisions that works to the disadvantage of a protected class.

If an applicant can show that an employer's practice of considering criminal history has an adverse impact on a protected class, the practice is in violation of FEHA unless the employer can show that it's job-related and consistent with business necessity. In general, this means that the employer must consider whether the criminal history would make the applicant unfit for the position or would pose an unacceptable level of risk.

Even if the employer shows that its policy or practice of considering conviction history is job-related and consistent with business necessity, applicants who are adversely impacted may still prove a violation of FEHA if they can show that there is a less discriminatory policy or practice that serves the employer's goals as effectively as the challenged one without significantly increasing the cost or burden on the employer.

Contact an Employment Lawyer

If you believe an employer has violated FEHA in its consideration of your criminal history, contact an employment lawyer. An experienced employment lawyer can help you determine whether an employer failed to comply with the law governing when and how to consider your criminal history.

An employment attorney can also help you assess whether an employer relied on a criminal background check policy or practice that discriminated against you based on your membership in a protected class.

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