What Are the Rules on Criminal Records Checks in California?

Employers in California often use criminal background checks as part of their hiring process to assess a candidate’s suitability for a position. However, the state has strict rules governing when and how these checks can be conducted to ensure fairness and prevent discrimination. 

If you have experienced unfair treatment during the hiring process, contact our Orange County hiring discrimination attorneys today by calling (949) 379-6250.

Ban-the-Box Law: When Employers Can Inquire About Criminal History

California’s Ban-the-Box Law, part of the Fair Chance Act, prohibits employers from asking about an applicant’s criminal history before making a conditional job offer. This applies to employers with five or more employees and aims to prevent applicants from being unfairly disqualified based on their criminal records during the early stages of the hiring process. Under this law, employers cannot:

• Include questions about criminal history on job applications.
• Ask about an applicant’s criminal record during interviews or before making a conditional offer of employment.

Limits on the Use of Criminal Records

Once a conditional job offer has been made, an employer may conduct a criminal background check. However, California law places restrictions on how employers can use this information:

• Relevance to the Job: Employers can only consider convictions that have a direct and substantial relationship to the job in question.
• Time Limits: Arrests that did not result in a conviction or convictions older than seven years (in most cases) cannot be considered.
• Sealed or Expunged Records: Employers cannot ask about or use sealed, expunged, or otherwise legally dismissed records when making employment decisions.
• Misdemeanors and Infractions: Certain minor offenses, such as misdemeanors or infractions, may also be excluded from consideration depending on their relevance.

Contact our discrimination lawyers in Orange County if you have experienced discrimination in the workplace or during the hiring process.

Individualized Assessment Requirement

If an employer decides to deny employment based on a criminal record, they must conduct an individualized assessment, which involves evaluating:

• The nature and gravity of the offense.
• The time that has passed since the offense or completion of the sentence.
• The nature of the job sought.

Employers must consider whether the conviction directly impacts the applicant’s ability to perform the duties of the job.

The Adverse Action Process

If, after conducting an individualized assessment, an employer decides not to hire an applicant due to their criminal record, they must follow a formal adverse action process:

Pre-Adverse Action Notice

Employers must notify the applicant in writing, provide a copy of the background check, and explain their reasoning.

Opportunity to Respond

The applicant must be given at least five business days to respond and provide evidence of rehabilitation or dispute inaccuracies in the report.

Final Decision Notice

If the employer proceeds with the decision to deny employment, they must provide a final written notice, including the applicant’s rights to challenge the decision.

Exemptions for Certain Industries

Certain industries and positions are exempt from some of these rules due to specific legal or regulatory requirements. For example:

• Jobs in law enforcement, healthcare, or childcare may require more comprehensive criminal background checks.
• Positions requiring security clearances or involving sensitive information may also be subject to additional scrutiny.

Protections Against Discrimination

Employers in California must ensure that their use of criminal records does not result in discrimination under state and federal law. For example, the use of criminal records must comply with Title VII of the Civil Rights Act of 1964, which prohibits employment practices that disproportionately impact individuals based on race, national origin, or other protected characteristics. Additionally, under California’s Fair Employment and Housing Act (FEHA), employers must ensure that their policies do not create disparate impacts on individuals from marginalized communities.

Contact our hiring discrimination attorneys in Orange County if you have experienced unfair treatment after providing a criminal record check during the hiring process.