California Ban the Box Law and Job Applicants with Criminal Records

The Fair Chance Act ("FCA") is California’s ban-the-box law.  FCA was first enacted on January 1, 2018, to prohibit employers with five or more employees (with some exceptions) from asking job candidates about their conviction history before making them a job offer.  FCA requires specific procedures for considering an applicant’s criminal history after a conditional job offer.

California Department of Fair Employment & Housing ("DFEH") is utilizing technology to conduct mass searches of online job advertisements for statements that violate the Fair Chance Act. In a one-day review, for example, DFEH found over 500 job advertisements with unlawful statements that the employer will not consider any job applicant with a criminal record.  

What NOT to do?

  • Include in job advertisements blanket statements that an employer will not consider anyone with a criminal history, such as “No Felons” or “Must Have Clean Record.”
  • Include in the job application (that is, before a conditional job offer) any questions about conviction history. 
  • Ask questions during the interview and before any conditional job offer about criminal conviction history.
  • Consider information about arrests not followed by convictions, participation in pretrial or posttrial diversion programs that have been completed and the underlying pending charges or conviction dismissed, sealed, or eradicated, or convictions that have been sealed, dismissed, expunged, or statutorily eradicated

What MUST employers DO under FCA?
  • Consider all applicants and then make a conditional offer.  "Conditional" means it depends on the results of the background check.
  • After making the conditional offer, and upon negative background check results, employers must consider an applicant’s criminal history on an individual basis, as well as any mitigating information provided by the applicant. That means that an employer can’t take back the job offer without considering the nature and gravity of the criminal history, the time that has passed since the conviction, and the nature of the job. 
  • If the employer decides to take back the job offer based on the criminal history of the applicant, the employer must inform so in writing, provide a copy of any conviction history report that it relied on, and give the applicant at least five business days to respond.

DFEH is also offering a new toolkit of resources to assist employers in complying with the Fair Chance Act.  This toolkit includes templates of advertisement and application compliance statement, conditional job offer, individual assessment, preliminary notice to revoke the conditional offer, individual reassessment, and final notice to revoke the job offer.
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