California’s ban the box law, formally the Fair Chance Act, bars most employers with five or more employees from asking about your criminal history until after they’ve made you a conditional offer of employment. The rule is codified in Government Code Section 12952 as part of the Fair Employment and Housing Act, and later amendments through Senate Bill 809 extended it into job postings and advertisements. The short version: your record isn’t supposed to enter the conversation until the employer has already decided they want to hire you.
Which Employers Have to Follow the Rule
The Fair Chance Act covers every public and private employer in California with five or more employees.1California Legislative Information. California Government Code 12952 – Unlawful Employment Practice That sweeps in most workplaces in the state.
Four categories of jobs are carved out because separate background check rules already apply to them: positions where a state or local agency is required by law to run a conviction check, jobs at criminal justice agencies as defined by Penal Code Section 13101, farm labor contractor positions under Labor Code Section 1685, and roles where federal, state, or local law requires a criminal background check or restricts employment based on conviction history, including roles governed by self-regulatory organizations under the Securities Exchange Act. If your job falls into one of those buckets, the employer follows the specific regulatory framework for that role rather than the Fair Chance Act process.
What Employers Can’t Put on Applications, Postings, or Ask in Interviews
Job advertisements and applications cannot include language stating a limitation based on conviction history. Phrases like “no felonies,” “background check required,” or “must have a clean record” are unlawful, even if the employer never actually rejects anyone for that reason.2California Legislative Information. SB-809 Employment Discrimination – Conviction History The only exception is when a conviction-based restriction is actually required by law and the employer has no discretion to waive it.
Job postings must also state affirmatively that the employer will consider qualified applicants with conviction histories consistent with state and federal law. If the employer intends to run a background check for the role, the posting has to list the specific job duties that could trigger an adverse decision and identify any laws restricting employment based on criminal history. Employers also have to post a workplace notice describing these rights in English, Spanish, and any language spoken by at least 10 percent of the workforce at that site.
The application itself can’t include a checkbox or question about convictions. That’s where the “ban the box” name comes from. Interviewers also can’t ask, and the employer can’t run an independent search for your record, until a conditional offer is on the table.1California Legislative Information. California Government Code 12952 – Unlawful Employment Practice The statute also prohibits the employer from considering conviction history at all before that point. If you volunteer information about a past case during an interview, they’re not supposed to factor it in.
Records That Stay Off-Limits Even After a Conditional Offer
Some records never come into play, no matter when the employer looks. Labor Code Section 432.7 prohibits any employer, public or private, from asking about or using the following in a hiring decision:
- Arrests that didn’t lead to a conviction.
- Participation in a pretrial or posttrial diversion program.
- Convictions that were sealed, dismissed, expunged, or statutorily eradicated, including dismissals under Penal Code Sections 1203.4 and 1203.4a.
- Any record from a matter that was handled in juvenile court.
The prohibition covers not just questions to the applicant but also information gathered from any other source.3California Legislative Information. California Labor Code 432.7 – Arrest and Conviction Records One narrow exception: an employer may ask about an arrest if you’re currently out on bail or released on your own recognizance awaiting trial.
Labor Code Section 432.8 adds a separate rule for certain minor marijuana convictions under specified Health and Safety Code sections: those cannot be considered once two years have passed from the date of conviction.4California Legislative Information. California Labor Code 432.8 – Marijuana Convictions
What Has to Happen Before an Offer Can Be Revoked
Once a conditional offer is in place, an employer can run a background check. If something turns up, they can’t just pull the offer. The law requires an individualized assessment weighing three factors:
- The nature and gravity of the offense or conduct.
- The time that has passed since the offense and completion of any sentence.
- The nature of the job being sought and whether the past conduct poses a realistic risk in that role.
Those factors come from Government Code Section 12952(c)(1)(A), and the implementing regulations describe the analysis as “a reasoned, evidence-based determination” rather than a blanket policy or gut call.5Legal Information Institute. 2 CCR 11017.1 – Consideration of Criminal History in Employment Decisions If you hold a professional license or certification required for the position, the regulations treat that as evidence your conviction history is likely not directly related to the job.
The Preliminary Notice and Your Right to Respond
If the assessment leads the employer to a preliminary decision to revoke the offer, they have to notify you in writing before that decision becomes final. The preliminary notice has to include the conviction or convictions the employer is relying on, a copy of the conviction history report (if any exists, whether from a third-party screening company or the employer’s own research), and an explanation that you have the right to respond with evidence disputing the accuracy of the report, evidence of rehabilitation or mitigating circumstances, or both. It also has to state the response deadline. The employer can choose whether to explain their reasoning, but they’re not required to.
You have at least five business days to respond, meaning any day that is not a Saturday, Sunday, or state holiday. If you notify the employer within those five days that you’re disputing the accuracy of the report, you get another five business days to gather and submit supporting evidence.6California Civil Rights Department. Fair Chance Act – Criminal History and Employment
Your response can challenge accuracy or present rehabilitation and mitigation evidence: employment history since the offense, education or training completed, an explanation of the circumstances, character references, or anything else showing the conviction shouldn’t disqualify you for this job. The employer is required to consider whatever you submit before making a final decision. Skipping this step is common and it’s a mistake. If you don’t respond, you’ve given up the strongest protection the law provides.
The Final Decision Notice
If the employer still decides to deny employment after reviewing your response, they have to send a written notice of the final decision. That notice must confirm the denial, describe any internal procedure the employer has for challenging the decision or requesting reconsideration, and tell you that you have the right to file a complaint with the California Civil Rights Department. Explaining the reasoning is optional. These requirements sit in Government Code Section 12952(c)(5).
Any missed step in this sequence, whether it’s the assessment, the preliminary notice, the waiting period, or the final notice, is itself a violation of the Fair Chance Act, regardless of whether the underlying decision would have been justified.
Filing a Complaint and What You Can Recover
Complaints go to the California Civil Rights Department, which handles Fair Chance Act claims through the same process it uses for other FEHA violations. You can file through the CRD’s online portal or by mailing a paper form to a regional office.7California Civil Rights Department. Complaint Process The deadline is three years from the date of the violation, with a limited extension of up to 90 days when you first discover the facts shortly before that period runs out.8California Legislative Information. California Government Code 12960 – Powers and Duties
Remedies under FEHA include back pay, front pay when reinstatement isn’t practical, attorney’s fees and costs including expert witness fees, and court-ordered workplace training on FEHA requirements.9California Legislative Information. California Government Code 12965 – Civil Actions and Relief
Violations of Labor Code Section 432.7’s separate prohibitions carry their own penalties. An applicant harmed by a violation can recover actual damages or $200, whichever is greater, plus costs and attorney’s fees. If the violation was intentional, damages become triple actual damages or $500, whichever is greater, and the employer faces misdemeanor charges punishable by a fine of up to $500.
Local Ordinances Can Add More Protection
Some California cities passed their own ban-the-box ordinances before the state law took effect, and those local rules can impose additional requirements on employers within city limits. Los Angeles has the Fair Chance Initiative for Hiring Ordinance, which applies to businesses with employees working in the city.10City of Los Angeles Bureau of Contract Administration. Fair Chance Initiative for Hiring Ordinance San Francisco has similar local protections. Employers subject to both a local ordinance and the state law have to follow whichever provision is more protective of the applicant. If you’re applying in a major California city, check whether a local rule adds to what state law already gives you.