California has a “Ban the Box” law that prohibits employers with five or more employees from inquiring into your criminal history before making a conditional offer of employment. Even after making an offer of employment, an employer cannot deny you because of a conviction without making an individualized assessment.
The “Ban the Box” law was signed into law as Assembly Bill 1008 on October 14, 2017 by California Governor Jerry Brown. Also called the California Fair Chance Act (FCA), the “Ban the Box” law, became effective January 1, 2018.1
With the passage of the bill, California joins a number of other states that have enacted similar laws. A number of major cities, including Los Angeles and San Francisco, already had similar laws, and some private employers have “Ban the Box” policies.2
Note that with the implementation of Senate Bill 731 & Assembly Bill 1076 – The Clean Slate Act, California is automatically clearing most people’s criminal records after a specified time period through a process called “automatic relief“:
- Misdemeanor arrests should be sealed after 1 year if there are no criminal charges, and felony arrests should be sealed after 3 years if there are no criminal charges.
- Cases that get dismissed will be cleared immediately.
- Convictions of cases where you are granted probation should be cleared when the case closes.
- Otherwise, misdemeanors convictions get cleared 1 year after the case ends, while felony convictions get cleared 4 years after the case ends. (This does not apply to serious, violent, or sex offender felonies.)
Once sealed, these arrests/charges/convictions should no longer show up on your background check. Though if you pick up new cases in the interim, it will delay the automatic sealing process.
Below, our California labor and employment law attorneys discuss the following topics re. criminal history and job applications. Also listen to our informative podcast:
- 1. Covered Employers
- 2. Exceptions & Rules
- 3. Job Interviews
- 4. Criminal History Questions
- 5. Seven-Year Rule
- 6. After the Hiring
- 7. Revocation of Job Offer
- 8. Employer Violations
- 9. Other States
- 10. Effectiveness
- 11. Background Checks
- 12. 2023 Updates
- Additional Resources
If you have further questions after reading this article, we invite you to contact us at Shouse Law Group.
1. Covered Employers
California’s “Ban the Box” law applies to private employers in the state with five or more employees.3 The law will prohibit these employers and business owners from asking about your criminal conviction history prior to making a conditional offer of employment.4
2. Exceptions & Rules
There are a number of exceptions to the new “Ban the Box” law. The law does not apply to the following positions:
- A position for which a state or local agency is required by law to conduct a conviction history background check;
- A position with a criminal justice agency or with law enforcement;
- A position as a Farm Labor Contractor; or
- A position where an employer or agent is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history.5
In addition, employers can ask about a criminal conviction after the employer has extended a conditional offer of employment.6
“Ban the Box” forbids California employers from asking about your criminal history during the initial application process.
An employer is also prohibited from considering other criminal history that did not end in a conviction when making hiring decisions. This includes:
- Arrest not ending in conviction (unless the case is still open);
- Juvenile records;
- Referral to or participation in a pre-trial or post-trial diversion program; or
- Convictions that have been sealed, expunged, or dismissed.7
3. Job Interviews
Employers cannot ask about a criminal conviction during an interview, or at any time before making a conditional offer of employment.8 This includes during
- an initial interview,
- the second interview, or
- the final round of interviews if an offer of employment has not been extended.
For more discussion, see our page on how to explain a misdemeanor on a job application.
4. Criminal History Questions
Employers can ask about criminal convictions after making a conditional offer of employment. A conditional offer of employment is a job offer that is dependent on you meeting certain conditions. Those conditions could include
- a background check and
- a check of your criminal convictions.9
After making a conditional job offer, an employer can ask about criminal convictions. However, the employer cannot automatically exclude you just for having a criminal conviction. Instead, an employer that intends to reject you solely or in part because of your criminal history is required to perform an individualized assessment of you.10
California’s “Ban the Box” law applies to employers with five or more employees.
An individualized assessment requires the employer to consider a number of factors to decide whether or not to hire you. These factors include:
- Whether your conviction history has a direct and adverse relationship with the specific job duties;
- The nature and gravity of the offense or conduct;
- The time that has passed since the offense or conduct and completion of the sentence; and
- The nature of the job held or sought.11
The individualized assessment may be put in writing, but this is not required.12
5. Seven-Year Rule
The criminal background checks that California employers order following a conditional offer of employment go back for only seven years (with some exceptions). This means that convictions older than seven years will not show up, and therefore employers cannot disqualify you based on them.13
6. After the Hiring
After making a job offer, the employer can make the job conditional on meeting certain terms or conditions. This includes passing a background check. If the employer finds out about your criminal history, the employer can take that into consideration whether to accept you or deny you.
Suppose an employer makes a preliminary decision to deny you solely or in part because of your criminal history. In that case, the employer is required to perform an individualized assessment of you, as noted above. If the employer denies you based on your conviction history, the employer must notify you in writing.
In California, you may respond to an employer’s preliminary decision to pass you over due to your criminal history.
The employer’s written notification may, but is not required to, explain the employer’s reasons or basis for making the preliminary decision to disqualify you. However, the notification is required to contain the following:
- Notice of the disqualifying conviction or convictions that are the basis for the preliminary employment decision to rescind the offer;
- A copy of the conviction history report, if any; and
- An explanation of your right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond.
The explanation of your rights must inform you that you can submit
- evidence that challenges the information in the conviction history report,
- evidence of rehabilitation, or
- evidence of mitigating circumstances.14
7. Revocation of Job Offer
You have the opportunity to respond to an employer’s preliminary decision to disqualify you based on criminal history. An employer’s notification of the decision to deny you must also explain your right to respond to the notice before the denial decision becomes final.15
You shall have at least five business days to respond to the notice or a preliminary decision to deny you before the employer may make a final decision.16
If you notify the employer within five days in writing that there are inaccuracies in the conviction history report, and you are going to obtain evidence in support of your position, you shall have five additional business days to respond to the notice.17
Many states other than California have “Ban the Box” laws.
Before the employer can make a final decision, the employer shall consider
- your response and
- any evidence submitted by you.18
You may also want to include letters of reference and emphasize your training, education, experience, and even volunteering experience (if applicable).
If the employer makes a final decision to deny you based on your criminal conviction history, the employer has to notify you in writing. The employer may, but is not required to explain the basis for the final denial. The notice must contain the following:
- The final denial or disqualification;
- Any existing procedure the employer has for you to challenge the decision or request reconsideration; and
- The right to file a complaint with the California Civil Rights Department (CRD), formerly the Department of Fair Employment and Housing (DFEH).19
8. Employer Violations
If an employer asks about your criminal history in violation of the new “Ban the Box” law, you may be able to file a complaint with the CRD or lawsuit against the employer.20
If you file a lawsuit against employment discrimination based on a criminal conviction, you may be able to seek money damages or equitable relief. If you suffered employment discrimination or harassment based on a criminal conviction, you can also seek to
- recover the costs associated with bringing the lawsuit, and
- have the employer reimburse your expenses for attorney’s fees and court costs.21
Employers must get your permission before running a background check.
There are three ways to file a complaint with CRD:
- File online;
- Fill out the complaint and mail it to CRD, 2218 Kausen Drive, Suite 100, Elk Grove, CA 95758; or
- Call the CDR at (800) 884-1684.
In 2021, the CRD searched online job advertisements and discovered about 500 listings with unlawful statements such as “must have clean record.” The CRD then mailed notices to these employers with instructions to remove these illegal statements. Note that the CRD is also offering Fair Chance Act Toolkits to employers to help them comply with the “Ban the Box” law.
9. Other States
Other than California, the following states mandate “Ban the Box” for both public and private employers: Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.
Plus more than thirty states have “Ban the Box” laws for public sector employers.22
10. Effectiveness
There is evidence that “Ban the Box” actually works against low-skilled minority males. Some employers presume this population has a criminal record, so they disqualify low-skilled minority males from the start.23
Job postings may not indicate that criminal records are disqualifying.
11. Background Checks
Background checks are legal in California, but with conditions. Employers may run a third-party background check on you if:
- They make a conditional offer of employment, and
- You provide written consent.24
12. 2023 Updates
The “Ban the Box” law was updated in 2023 in three main ways:
1) Extended Coverage
The term “employers” now also comprises :
- Staffing agencies and similar entities;
- Employer agents who evaluate an applicant’s criminal history; and
- Joint employers.
The term “applicant” now also comprises existing employees trying for a different position in the company or who are up for review triggered by a change in policy or management.
2) Clearer Employer Prohibitions
Prior to making a conditional employment offer, employers are also barred from:
- Culling your criminal history from the internet;
- Considering your criminal history that you voluntarily disclosed;
- Including qualifications in job postings such as “No Criminal History”;
- Discriminating against you for not disclosing your criminal history upfront.
Furthermore, employers may not run a background check unless one of the law’s exemptions apply directly to them. If the exemption only applies to, for example, a state licensing board, the employer may not run the check itself.
3) Clearer Instructions for Withdrawing Conditional Job Offers
Employers must conduct a thorough, individualized assessment to determine if a conviction directly and negatively impacts the job’s specific duties. If a licensing agency has already granted you necessary permissions despite the conviction, it weakens an employer’s argument for disqualification.
First, employers must consider:
- The nature and severity of the offense, including specific conduct, harm caused, and contributing factors like disability or trauma (while adhering to privacy laws);
- The time elapsed since the offense or release from custody; and
- The specific job duties and potential for similar situations to arise in the workplace.
If the employer makes a preliminary decision to withdraw the offer, they must provide you a pre-adverse action notice and at least five business days to reply with relevant evidence (such as rehabilitation efforts or mitigating circumstances). Employers cannot refuse relevant evidence, demand specific documentation, or require disclosure of sensitive information like medical conditions or survivor status.
Following your response, the employer must reassess their decision. Additional factors to consider include:
- Conduct during incarceration,
- Post-conviction employment history,
- Community involvement, and
- Other rehabilitation efforts.
If the final decision is to not hire you, the employer must provide a final adverse action notice in writing.25
“Ban the Box” laws help level the playing field among qualified job applicants.
Additional Resources
For more information, refer to the following:
- The Fair Chance Act: Guide for Employers and Job Applicants – Overview by the California Civil Rights Department.
- The Limits of Ban-the-Box Legislation – Policy Brief by the Institute for Research on Labor and Employment (IRLE).
- 10 Common Job Interview Questions and How to Answer Them – Guide by Harvard Business Review.
- Everything You Need to Know About Job Searching in the Digital Age – Article in Business News Daily.
- What To Consider Before Accepting a Job Offer – Discussion by The Balance, a personal finance website.
Legal References:
- California AB 1008 amends Fair Employment and Housing Act (FEHA) to add Government Code section 12952, effective date January 1, 2018 (“The Fair Chance Act”). See, for example, People v. Allen (Court of Appeal of California, Fourth Appellate District, Division One, 2019) 41 Cal.App.5th 312, 147; Juster v. Workday, Inc. (United States District Court for the Northern District of California, 2022) 21-cv-07555-EMC.
- California AB 1008 (“(d) Nine states and 15 major cities, including Los Angeles and San Francisco, have adopted fair chance hiring laws that cover both public and private sector employers. Over 20 percent of the United States population now lives in a state or locality that prohibits private employers from inquiring into an applicant’s record at the start of the hiring process.”). Hawaii was the first state to institute a “ban the box” law. See also Fair Chance Initiative for Hiring Ordinance (FCIHO) in Los Angeles; Fair Chance Ordinance (FCO) in San Francisco.
- Fair Employment and Housing Act 12952 (“(a) Except as provided in subdivision (d), it is an unlawful employment practice for an employer with five or more employees to do any of the following: (1) To include on any application for employment, before the employer makes a conditional offer of employment to the applicant, any question that seeks the disclosure of an applicant’s conviction history. (2) To inquire into or consider the conviction history of the applicant, including any inquiry about conviction history on any employment application, until after the employer has made a conditional offer of employment to the applicant.”)
- Same.
- Fair Employment and Housing Act 12952 (“(d) This section does not apply in any of the following circumstances: (1) To a position for which a state or local agency is otherwise required by law to conduct a conviction history background check. (2) To a position with a criminal justice agency, as defined in Section 13101 of the Penal Code. (3) To a position as a Farm Labor Contractor, as described in Section 1685 of the Labor Code. (4) To a position where an employer or agent thereof is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history. For purposes of this paragraph, federal law shall include rules or regulations promulgated by a self-regulatory organization as defined in Section 3(a)(26) of the Securities Exchange Act of 1934, as amended by 124 Stat. 1652 (Public Law 111-203), pursuant to the authority in Section 19(b) of the Securities Exchange Act of 1934, as amended by 124 Stat. 1652 (Public Law 111-203).”)
- Fair Employment and Housing Act 12952, footnote 3 above.
- Fair Employment and Housing Act 12952 (“(3) To consider, distribute, or disseminate information about any of the following while conducting a conviction history background check in connection with any application for employment: (A) Arrest not followed by conviction, except in the circumstances as permitted in paragraph (1) of subdivision (a) and subdivision (f) of Section 432.7 of the Labor Code. (B) Referral to or participation in a pretrial or posttrial diversion program. (C) Convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.”)
- Same. Note that having a criminal history can bar someone from receiving a professional license, such as in In re Gossage, (2000) 23 Cal. 4th 1080, 5 P.3d 186; see also In re Strick (1983) 34 Cal. 3d 891, 671 P.2d 1251.
- Fair Employment and Housing Act 12952 (“(b) This section shall not be construed to prevent an employer from conducting a conviction history background check not in conflict with the provisions of subdivision (a).”)
- Fair Employment and Housing Act 12952 (“(c)(1)(A) An employer that intends to deny an applicant a position of employment solely or in part because of the applicant’s conviction history shall make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position. In making the assessment described in this paragraph, the employer shall consider all of the following: (i) The nature and gravity of the offense or conduct. (ii) The time that has passed since the offense or conduct and completion of the sentence. (iii) The nature of the job held or sought.”)
- Same.
- Fair Employment and Housing Act 12952 (“(c)(1)(B) An employer may, but is not required to, commit the results of this individualized assessment to writing.”)
- California Civil Code 1786.18. See also FCRA (Fair Credit Reporting Act).
- Fair Employment and Housing Act 12952 (“(c)(2) If the employer makes a preliminary decision that the applicant’s conviction history disqualifies the applicant from employment, the employer shall notify the applicant of this preliminary decision in writing. That notification may, but is not required to, justify or explain the employer’s reasoning for making the preliminary decision. The notification shall contain all of the following: (A) Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer. (B) A copy of the conviction history report, if any. (C) An explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond. The explanation shall inform the applicant that the response may include submission of evidence challenging the accuracy of the conviction history report that is the basis for rescinding the offer, evidence of rehabilitation or mitigating circumstances, or both.”).
- Fair Employment and Housing Act 12952 (“(c)(3) The applicant shall have at least five business days to respond to the notice provided to the applicant under paragraph (2) before the employer may make a final decision. If, within the five business days, the applicant notifies the employer in writing that the applicant disputes the accuracy of the conviction history report that was the basis for the preliminary decision to rescind the offer and that the applicant is taking specific steps to obtain evidence supporting that assertion, then the applicant shall have five additional business days to respond to the notice.”)
- Same.
- Same.
- Fair Employment and Housing Act 12952 (“(c)(4) The employer shall consider information submitted by the applicant pursuant to paragraph (3) before making a final decision.”)
- Fair Employment and Housing Act 12952 (“(c)(5) If an employer makes a final decision to deny an application solely or in part because of the applicant’s conviction history, the employer shall notify the applicant in writing of all the following: (A) The final denial or disqualification. The employer may, but is not required to, justify or explain the employer’s reasoning for making the final denial or disqualification. (B) Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration. (C) The right to file a complaint with the department.”)
- Fair Employment and Housing Act 12952 (“(e) The remedies under this section shall be in addition to and not in derogation of all other rights and remedies that an applicant may have under any other law, including any local ordinance.”)
- Fair Employment and Housing Act 12965 — Unlawful Practices. (“(b) … In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees.”)
- See National Employment Law Project.
- Patricia Barnes, Study Says “Ban The Box” Policies Hurt (Not Help) Young Minority Male Job Seekers, Forbes (March 1, 2020).
- See note 3. See also FCRA (Fair Credit Reporting Act).
- California Government Code 11017. Final Text of Modifications to Employment Regulations Regarding Criminal History, Civil Rights Council.