California Fair Chance Act: Hiring Rules and Applicant Rights

The California 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 job offer.¹ Even after that offer, the employer can’t simply pull it back because something turned up on a background check. They have to run a structured analysis, send you written notice, give you time to respond, and then send a second notice if they still intend to rescind. The law doesn’t hide your record from employers. It forces them to look at your qualifications first and your past only in relation to the specific job.

Which Employers Have to Follow the Law

Any private employer with five or more employees is covered.¹ State and local government agencies are covered too, with a narrower exemption for roles where a separate statute already requires a conviction background check.² The definition of “employer” sweeps in staffing agencies, labor contractors, joint employers, and any outside entity evaluating conviction history on an employer’s behalf.³

Some jobs sit outside the standard timeline because another law independently requires a background check. Law enforcement positions, jobs working directly with children, certain healthcare facility roles, and farm labor contractor positions are the main examples.² If you’re applying for one of these, expect a background check earlier in the process. For everyone else, the rules below apply.

No Questions About Your Record Before a Conditional Offer

The core “ban the box” rule is simple. Employers cannot put conviction history questions on a job application, and they cannot ask about or consider your record during interviews, until after they’ve extended a conditional offer of employment.¹ The conditional offer is the line. Everything before it has to be about your qualifications and fit for the role.

Indirect questions designed to surface the same information are also off-limits. And it’s unlawful for an employer to interfere with or retaliate against you for asserting your rights under the Act.¹

Records an Employer Can Never Use

Even once the conditional offer is on the table, some records remain off-limits. Government Code section 12952(a)(3) bars employers from considering any of the following:¹

Arrests that didn’t lead to a conviction
Participation in a pretrial or posttrial diversion program
Convictions that were judicially dismissed, sealed, or expunged, or that resulted in a full pardon or certificate of rehabilitation

Labor Code section 432.7 goes further and applies to all employers regardless of size. It prohibits asking about or using arrests that didn’t lead to conviction, diversion records, or juvenile court records at any point in the employment relationship, whether the decision involves hiring, promotion, or termination.⁴ The one exception: an employer can ask about an arrest if you are currently out on bail or awaiting trial.

Separately, since July 2023 the California Department of Justice has been automatically clearing eligible conviction records on a rolling basis under SB 731. Probation completed without revocation, infractions and misdemeanors a year past sentence, and most non-serious, non-violent felonies four years past supervision can qualify. Cleared records cannot be used against you.⁵

The Individualized Assessment

If a post-offer background check turns up a conviction, the employer cannot pull the offer on the spot. They have to perform an individualized assessment weighing whether that conviction has a direct and adverse relationship to the specific duties of the job.¹ Three factors drive the analysis:

The nature and gravity of the offense, meaning what actually happened rather than just the charge name
How much time has passed since the offense and since the sentence was completed
Whether the conviction is relevant to the essential functions and environment of the position

The employer isn’t required to write the assessment down, though many do.¹ What matters is that the decision reflects a real analysis rather than a blanket policy. Reflexive rejection violates the Act.

The Preliminary Notice and Your Response Window

If the assessment produces a preliminary decision to rescind, the employer must send you a written notice first. That notice has to include:¹

The specific conviction or convictions the employer is relying on
A copy of the conviction history report, if one exists, so you can check it for errors
An explanation of your right to respond before the decision becomes final, including the deadline

The California Civil Rights Department publishes sample forms employers can use to meet these requirements.⁶

You then have at least five business days to respond. You can dispute the accuracy of the report, submit evidence of rehabilitation, present mitigating circumstances, or do all three.¹ If you notify the employer in writing within those five days that you’re gathering evidence to challenge the report, you get another five business days, for ten total.

Employers who finalize the decision before the response period ends are violating the statute. That shortcut alone can support a complaint.

Evidence of Rehabilitation Worth Gathering

The stronger and more verifiable your documentation, the harder it is for an employer to justify a denial. Useful materials include:

Letters from past supervisors or coworkers confirming job performance, reliability, and attendance
Transcripts or completion certificates from education or job training programs
Letters from a parole or probation officer confirming compliance and clean drug tests
Documentation of volunteer work or community involvement
Proof of completion of counseling or treatment programs tied to the underlying offense
A personal statement explaining what has changed since the conviction

Letters that include specific dates, responsibilities, and observations carry more weight than generic character references. Employers are required to consider this evidence before reaching a final decision.

The Final Notice

If the employer still decides to rescind after reviewing your response, a second written notice is required. That final notice must include:¹

Notification of the final denial
Any internal procedure the employer offers for challenging the decision or asking for reconsideration
Your right to file a complaint with the California Civil Rights Department

Many applicants don’t know a second notice is required. If an employer sent the preliminary notice and then went silent, the process is incomplete, and that gap is worth raising in a complaint.

Protections If You’re Already Employed

The Act isn’t limited to new hires. Regulations that took effect in October 2023 extended coverage to current employees facing decisions about promotion, discipline, layoff, or termination based on a review of their criminal history.³ Under the updated rules, “applicant” includes existing employees who become subject to a criminal history review because of a change in ownership, management, policy, or practice.

An employer that adopts a new background check policy cannot retroactively screen existing employees and fire them without going through the same individualized assessment and notice procedures. If your company recently changed hands or updated its screening practices, these protections cover you.

How to File a Complaint

If an employer asks about your record too early, skips the individualized assessment, fails to send either notice, or considers records that are off-limits, you can file a complaint with the California Civil Rights Department.⁷ Complaints can be filed online or submitted by mail using a physical intake form.

CRD reviews the complaint and decides whether to open a formal investigation. In some cases the department offers mediation. CRD has secured settlements approaching $100,000 in individual Fair Chance Act cases.⁸

If CRD doesn’t file a civil action within 150 days, or decides earlier not to pursue the case itself, the department will issue a right-to-sue notice so you can bring the claim in court. Remedies available in court include back pay, reinstatement or front pay, compensatory damages for emotional distress, and reasonable attorney’s fees. A court can also order the employer to change its practices and conduct Fair Chance Act training.⁹

1
California Legislative Information. California Government Code 12952
2
California Civil Rights Department. Fair Chance Act: Criminal History and Employment
3
New York Codes, Rules and Regulations. 2 CCR 11017.1 – Consideration of Criminal History in Employment Decisions
4
California Legislative Information. California Labor Code 432.7
5
California Legislative Information. Senate Bill 731
6
California Civil Rights Department. Fair Chance Act: Guide to Using CRD’s Sample Forms
7
California Civil Rights Department. Fair Chance Act
8
California Civil Rights Department. Civil Rights Department Launches New Online Interactive Guide to Help Combat Violations of California’s Fair Chance Act
9
California Legislative Information. California Government Code 12965