If you're one of the roughly 1 in 3 people in California holding a criminal record, you might be concerned about how it could impact your job hunt. Many employers typically conduct criminal background checks for some roles. Employers often include questions about criminal backgrounds on job applications, which can result in the immediate disqualification of many applicants.
The good news is that California law offers solid protections for job applicants with criminal records. That means that during job applications or interviews, employers can’t bring up questions on arrests or conviction records. But there are a few exceptions. For certain roles, such as those involving the handling of sensitive information or law enforcement, employers may conduct a background check to inquire about a candidate's criminal record.
This blog will discuss California laws on the employer's use of arrest and conviction records and how they can protect you as a job applicant.
The California Fair Employment and Housing Act (FEHA)
FEHA is a law that protects people from employment discrimination. It stops unfair treatment based on characteristics like race, sexual orientation, gender, and disability. FEHA also restricts how employers can use criminal histories when making hiring judgments.
Under this law, employers can’t decide not to hire you based on your conviction or arrest record. The only time this might change is if the crime is related to the profession or poses a safety risk. FEHA ensures that employers treat job applicants fairly, even if they have an arrest record that didn’t result in a conviction.
The Fair Chance Act
The Fair Chance Act prevents employers with more than five employees from conducting criminal background checks before offering you a job. It’s often referred to as the “Ban the Box” law, and it is part of the Fair Employment and Housing Act.
The goal of the Fair Chance Act is to help employers focus on each applicant’s qualifications instead of automatically turning away those with criminal backgrounds. The law includes specific guidelines that employers must follow before considering an applicant’s criminal record or deciding not to hire someone based on it. Here is what you need to know about the Fair Chance Act in California:
How Employers Should Use the Fair Chance Act Before Making a Conditional Job Offer
The Fair Chance Act mandates employers to take out a common question from job applications: “Has the court ever convicted you of a felony?” Job applicants no longer have to answer “no” or “yes” to this question.
California employers can’t ask about or look into your criminal history until they make a conditional job offer. The law prohibits employers from conducting criminal background checks through background checks, internet searches, job application questions, or any other means.
Additionally, employers can’t include messages in job postings or advertisements that suggest they won’t consider applicants with criminal records. For instance, they can’t use phrases like “job applicants must have clean records” or “we’re not hiring felons” in their job advertisements.
If you share your criminal record before getting a job proposal, the employer shouldn’t take that information into account until after they make you an offer of employment.
If the employer breaks the law by requesting details about your criminal record before extending a job offer, and you choose not to share that information at that time, the employer cannot decide not to hire you solely on that choice. Additionally, that decision cannot be used as the basis for any future hiring decisions by the employer.
These regulations have a few specific exceptions, such as if the employer is a local or state organization mandated by California law to perform a background check.
After Receiving a Conditional Employment Offer
After giving a conditional job offer, the employer can ask about your conviction records. They cannot consider certain records, such as an arrest record that didn’t lead to a conviction, at any stage of the hiring process.
Before denying employment based on conviction records, the employer must conduct “individualized assessments.” That means they should carefully evaluate whether your past conviction is directly related to the job responsibilities. At the very least, the employer should consider three key factors when conducting this assessment.
Firstly, the employer should consider the nature of the offense and its severity. While doing this, they can consider a few important points:
- The specific actions led to your conviction
- If the offense caused harm to people or property
- How serious and lasting the harm was
- The situation surrounding the offense
- If any disabilities, like mental health issues or previous drug addiction, played a role, and how likely it is that similar issues could cause harm again
- If factors like trauma, sexual assault, domestic violence, human trafficking, stalking, or pressure influenced the behavior
- Your age when the incident happened
Next, the employer should think about how much time has passed since you committed the crime and completed your sentence. When looking at this, the employer can consider factors like:
- The time that has passed since the behavior that led to the conviction, which may have occurred well before the actual conviction was made
- If the conviction resulted in jail time, how long has it been since your release?
Next, the employer must consider the specifics of the job for which you are applying. In considering those details, an employer can consider:
- The scope of the responsibilities of the job for which you are applying
- If the circumstances surrounding the conviction could occur within the job
- The relevance of the offense to the duties associated with the job, the nature of the offense, and the harm it caused.
As an example, if you have a conviction for prescription substance misuse from six years ago, and you have since undergone treatment and remained drug-free, it would be job-relevant not to hire you for a position in a drug store. But the history of substance misuse might be irrelevant in a call center.
When a regulatory or licensing agency grants you a right or privilege that would be necessary for your prospective job, it is generally a strong indicator that your criminal history does not negatively affect your eligibility for the job or the specific responsibilities of the job. For example, obtaining a nursing license can indicate to an employer that the conviction history is unrelated to the role of a licensed nurse.
The Employer Should Allow You to Respond
Should the employer choose not to employ you after an individual evaluation, the employer must provide you with a written notification of that outcome, along with an opportunity to respond. The written notification must include:
- The conviction history that influenced the decision
- Any written statements made by the employer for the employer’s decision, including consumer reports, public records, news articles, or information found online
- Notification to you of your right to challenge the validity of the information or provide information related to behavioral rehabilitation or other mitigating circumstances
- A minimum of five business days for you to respond. If you promptly indicate a need for more time to collect evidence, they must provide an additional five days
You decide whether to provide evidence in response, and all responses are voluntary. Employers can’t turn down any extra evidence that you decide to share at any point during the hiring procedure. Employers can’t turn down any extra evidence that you decide to share at any point during the hiring procedure.
In California, the law allows applicants to submit a wide range of evidence. Some examples of evidence that can show mitigating circumstances include:
- Participation in self-development activities like school, counseling, job training, community service, or rehabilitation programs, even while in custody
- Details about the situation surrounding the charge
- Completing or following the probation or parole terms
You can provide proof of completing a drug rehab program or show how you’ve tried to make up for your crime. When evaluating your rehabilitation efforts or any mitigating factors, the employer should consider the same elements required for the individualized assessments, along with these additional points:
- If your conviction resulted in jail time, the employer should look at your behavior during your sentence, including your involvement in work, educational programs, or any positive activities.
- The employer should review your job history after your conviction or upon completion of your sentence.
- The employer should also consider your community involvement since your conviction or fulfillment of your sentence, such as volunteering for local organizations, participating in a religious group, joining recovery or support groups, and engaging in other civic activities.
Before making their final judgment, the employer should review any information you provide. If the employer decides to refuse employment, they must send a written notice regarding this decision.
This notice should explain how the applicant can challenge the judgment and inform them about their right to file a grievance with the Civil Rights Department.
The San Francisco and Los Angeles Fair Chance Laws
Los Angeles and San Francisco introduced “fair chance” statutes before the ban-the-box law came into effect. Similar to the ban-the-box rule, these ordinances allow applicants to present positive information if an employer decides not to employ them due to their criminal history.
Given that ban-the-box offers more protection, both cities have updated their ordinances to align with it.
Los Angeles Fair Chance Law
The LA ordinance sets stricter rules than California’s state requirements for employers when reviewing an applicant’s criminal history, regardless of its origin. Here’s what employers need to do:
- They must complete an assessment that clearly connects the specific details of your criminal history to the risks associated with the job you’re applying for
- They need to give applicants a “fair chance procedure.” This fair chance allows you to share any information or documents that the employer can evaluate before reaching a final verdict. It could include proof that the criminal records are incorrect, evidence of behavioral change, or other factors that may support the applicant. When employers send out a notice of a potential adverse decision, they must include a copy of the evaluation and any supporting information for their decision
- Give it a minimum of five working days before making any decisions or filling the position. When you share more information or documents, the employer should review them and write up a reassessment. If they still choose to pursue action against you, they need to inform the individual and include a reassessment copy with the notice of adverse action
In Los Angeles, all job postings and announcements for city positions must clearly state that the employer will evaluate qualified applicants with criminal backgrounds in accordance with the law. LA also has specific requirements for posting notices.
Fair Chance Law in San Francisco
If an employer with more than five employees in San Francisco plans to ask about criminal history, they need to give you a copy of the Fair Chance Act Notice before they ask about your criminal record or run a background check. Plus, there are specific notice posting rules they must follow.
Employers in San Francisco cannot consider certain categories of criminal histories, even if those records might be relevant in other cities in California. These include:
- Convictions that are more than seven years from the sentencing date
- Infractions
- Any conviction linked to actions that have been made legal since the sentencing date, like certain cannabis and marijuana offenses.
The Fair Credit Reporting Act
The FCRA sets two key requirements for employers. First, they need to acquire your written permission before running criminal background checks on you. Second, if they decide not to hire you based on what they find in that check, they must inform you. This law only applies to employers who hire third parties to conduct background checks; it doesn’t apply if they conduct them themselves.
The California Information Privacy Act
CIPA is a California law that includes many similar rules to the FCRA. For instance, CIPA requires employers to obtain your approval before conducting criminal background checks. If the employer conducts the check in-house, they must allow you to view the report and give you copies if you request them.
Laws Against Discrimination Regarding Criminal History
California and federal employment laws prohibit employers from discriminating against job applicants based on legally protected traits, such as gender, race, and national origin.
Since arrest and detention rates are notably higher for Latino and African American individuals, an employer who automatically excludes all applicants holding criminal records could be seen as engaging in racial discrimination.
According to California law, if an employer’s policies regarding criminal history lead to a major difference in hiring, promotions, or other hiring decisions that negatively affect a protected group, those policies are considered discriminatory under FEHA.
If you can demonstrate that an employer’s approach to criminal history harms a protected category, then that practice violates FEHA, except if the employer could prove that it’s necessary for the job and aligns with business needs. Essentially, employers need to evaluate whether your criminal history makes you unsuitable for the role or creates an unacceptable risk.
Even if an employer can show that their policy on considering criminal history is relevant to the job and necessary for business, applicants who face negative impacts can still allege a FEHA violation. They just need to demonstrate that there’s a less biased approach that achieves the same goals for the employer without dramatically increasing costs or burdens.
What Do Background Checks Reveal?
A background check in California examines a person’s criminal history, including arrests, convictions, and pending legal proceedings within the state. It gives employers and others important insights into your criminal background and record.
Civil Records
Additionally, California background checks might contain information about civil records, such as judgments, liens, child support, and lawsuit payments. Landlords, employers, and other relevant parties can access this information.
Credit History
California background checks can also include details about a person’s credit history. That may cover late payments, bankruptcies, collections, and financial data.
Criminal Background
A background check reveals your criminal history. It includes any arrests, convictions, and pending criminal charges, as well as information on whether you are currently on parole or probation. Please note that employers can only access this information if you have given your permission.
Criminal Records That California Employers Should Never Consider When Making Hiring Decisions
There are specific criminal records that employers cannot consider. Employers should never ask about or take into account the following during hiring, even if the applicant shares this information voluntarily:
Arrest Records
Employers cannot inquire about detentions that didn’t result in convictions or use information from those arrests. However, they can ask about those that led to convictions and those where you’re awaiting trial, such as if you’re out on bail or have been discharged on your own recognizance.
Certain Marijuana Charges
Employers can’t ask about misdemeanor marijuana possession convictions that are older than two years.
Diversion Programs
Employers can’t ask if you were referred to or participated in a diversion program, unless you bring it up after getting a conditional job offer to show your rehabilitation or any mitigating factors.
Juvenile Records
California employers can’t ask about your juvenile records related to arrest, processing, detention, or adjudication in the juvenile court criminal justice system.
Dismissed Convictions
California employers can’t ask about past convictions that the court has sealed, dismissed, or expunged, or any charges for which you’ve received a pardon or a rehabilitation certificate.
Find an Experienced Criminal Defense Attorney Near Me
In California, there are multiple laws designed to protect job applicants by restricting the use of criminal history and arrest records during the hiring process. Job seekers should be aware of their rights and understand what employers are legally permitted to do with criminal history when making hiring decisions.
At The Los Angeles Criminal Defense Attorney, we provide legal services to individuals charged with a crime in the Los Angeles area. We also assist clients in obtaining record expungement, which allows them to remove their criminal history, potentially increasing their chances of being hired. Please contact us at 310-564-2605 to speak to one of our defense attorneys.
