The California Fair Chance Act: When an Employer May Ask About Criminal History, and the Notice Steps

The Act covers public employers and private employers with five or more employees, including union hiring halls, labor contractors and temporary employment agencies. Covered people are applicants, people who start work before a background check is run, employees up for promotion, and employees otherwise undergoing a background check¹.

The fact sheet lists these exceptions: farm labor contractors, state criminal justice agencies, certain positions at health care facilities, and any position where the employer is required by law to conduct background checks or restrict employment based on criminal history¹. The statute’s subdivision (d), as it appears on a mirror, lists positions where a state or local agency must conduct a conviction check, criminal justice agency positions, farm labor contractor positions, and positions where federal, state or local law requires background checks or restricts hiring by criminal history³. Even in an exempt job, FEHA still bars criminal-history use that has an adverse impact on a protected group without a legitimate business purpose¹.

Local ordinances (Los Angeles and San Francisco are common examples) add their own rules. The statute says its remedies are in addition to rights under local ordinances³; those ordinances are not covered on this page.

Most employers cannot ask about conviction history on job applications, cannot run a background check or internet search for criminal history before a conditional offer, and cannot post statements excluding people with criminal histories, such as “No Felons” or “Must Have Clean Record”¹. The CRD’s overview page says the law “generally prohibits employers with five or more employees from asking a job candidate about conviction history” before a job offer². The regulation adds that an employer may not use an applicant’s failure to disclose criminal history before the conditional offer as a factor⁴.

The employer may run a check, within limits. The CRD fact sheet lists what is off limits¹:

• arrests that did not result in conviction (with limited exceptions);
• sealed, dismissed, expunged or statutorily eradicated convictions;
• charges or convictions dismissed after successful pretrial or posttrial diversion, such as drug court or mental health court;
• “Conviction history that is more than seven years old based on the date of disposition (the conviction date), date of release from prison or jail, or date of parole.”

A summary of 2 CCR 11017.1 also lists certain juvenile records and non-felony marijuana possession convictions at least two years old⁴. Any background check the employer orders also falls under the federal rules in What Shows Up on an Employment Background Check.

The individualized assessment

An employer “cannot refuse to hire someone just because they have a criminal record” or a particular kind of conviction. It must decide whether the conviction has “a direct and adverse (negative) relationship with the job duties of the specific position,” weighing three things¹:

1. The nature and gravity of the conviction or conduct, including age at conviction, the specific conduct, harm and context; whether a disability contributed and whether a reasonable accommodation could help; and whether trauma, domestic or dating violence, sexual assault, stalking, trafficking or duress contributed.
2. The time that has passed since the conduct, the release or both.
3. The nature of the job and its specific duties.

The statute, as summarized on the mirror, makes documenting the assessment optional³.

The sequence below is the CRD’s. It overlaps with the federal pre-adverse action notice, because both require a copy of the report; the federal side is on Pre-Adverse Action Notice: What the Employer Must Send You.

1. A written preliminary (non-final) notice. It must include the list of convictions causing the withdrawal, a copy of the background check report, a statement of the right to respond with evidence of rehabilitation and mitigation before a final decision, and the response deadline. The notice may, but need not, explain the employer’s reasons¹.
2. A response window. At least five business days from the date the notice is received, with more time when the applicant disputes the report (next section)¹³.
3. Reassessment. The employer must consider what the applicant submits. The fact sheet’s examples include age at the offense, circumstances, work history, school or training, counseling, community service, treatment, compliance with probation or parole, bonding under a federal, state or local program, likelihood of recurrence, and trauma or disability factors. Proof can be certificates, letters of support, police reports or disability documents¹.
4. A final written notice. If the employer still withdraws, the notice states the denial, any procedure to challenge or request reconsideration, and the right to file a complaint with the CRD. Explaining reasons is optional¹.

When delivery is not confirmed, such as regular mail, the fact sheet says the notice is deemed received five calendar days after deposit for California addresses, ten for other U.S. addresses and twenty for addresses outside the U.S.¹. A summary of the regulation says an emailed notice is deemed received two business days after sending⁴.

Sources disagree On the extra time to dispute the report’s accuracy, the statute as summarized on a mirror says “five additional business days” when the applicant disputes accuracy in writing and is taking specific steps to obtain supporting evidence³. The CRD fact sheet says “at least ten days” when the job seeker is challenging accuracy, without saying business days¹. Both give at least five business days as the basic window. For the longer window, the statute’s wording (five business days plus five more) is the one that names its unit.

The count runs from the date the notice is received¹.

Sources disagree The CRD fact sheet says conviction history more than seven years old, counted from disposition, release or parole, is off limits after a conditional offer¹. A summary of 2 CCR 11017.1 says something narrower: bright-line policies based on convictions “seven or more years old are subject to a rebuttable presumption” that they fail the business-necessity defense⁴. The statute summary on the mirror does not mention a seven-year bar³. A separate seven-year limit, in Civil Code section 1786.18, governs what an investigative consumer reporting agency may report⁵, and federal law has no seven-year cutoff for convictions⁶. These are different rules and are not interchangeable. The fact sheet is the CRD’s own statement of what it enforces; the regulation text is the primary source for the presumption.

The Act is enforced by the Civil Rights Department: calcivilrights.ca.gov, 800-884-1684, TTY 800-700-2320¹. The CRD page links a fact sheet, sample forms and an interactive guide².