Conviction History

California’s Fair Chance Act provides some protections during the job application process for people with a history of criminal justice system involvement. Most employers in California with 5 or more employees are not allowed to ask about or look up information about your history of criminal justice system involvement until they have given you a conditional job offer. This means that the job application cannot ask you whether you have a history of criminal justice system involvement.

Employers cannot ask during your interview, either. Employers may conduct a background check before they make you a final offer, though. BUT, this does not mean that employers can automatically reject you because you have a history of criminal justice system involvement.

The Fair Chance Act does not cover certain employers,

such as employers that are legally required to inquire about an applicant’s history of criminal justice system involvement (i.e. jobs in facilities that provide care for elderly people or children).

There are certain types of records that covered employers CANNOT consider.

Covered employers cannot consider arrests that did not lead to a conviction, juvenile records, participation in a diversion program, convictions for which you have received a pardon or a certificate of rehabilitation, or convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law (erased by statute). It is also important to note that employers are NOT allowed to see your Records of Arrests and Prosecutions (RAP) sheet.

Most employers use commercial background checks.

A commercial background check occurs when an employer uses an outside agency to run a background check on you. It is illegal for a commercial background check to include: a conviction for which you have received a pardon; arrest, indictment, information, or misdemeanor complaint from which a conviction did not result; sealed, dismissed, expunged, or statutorily eradicated convictions; or convictions that are more than 7-years old.

It is important to note that the 7-year rule for convictions is counted from the date of disposition, release or parole. For example, if you were convicted 20 years ago, but were paroled only 5 years ago, that conviction would still appear on a commercial background check. Pending cases do appear on commercial background checks. Covered employers must provide you with a copy of the background check report.

Covered employers may NOT revoke your job offer just because you have a history of criminal justice system involvement,

or even just because you have a felony, for example. Rather, employers must consider 3 factors to determine whether your history of criminal justice system involvement will have a direct and negative impact on your job duties: 1) what conviction(s) you have and how serious the conviction(s) is/are, 2) the time that has passed since the conviction(s) and your completion of the sentence(s), and 3) the job duties you would have at the employer.

An employer’s consideration of these 3 factors is called an “individualized assessment.” If an employer conducts this “individualized assessment” and feels that your conviction history will have a direct and negative impact on your job duties, the employer may issue what is called a “pre-adverse action notice,” which is a preliminary revocation of your job offer. However, you still have rights under the Act at this stage.

Covered employers may NOT revoke your job offer based on your history of criminal justice system involvement without considering the rebuttal information you submit.

The employer MUST give you at least 5 days to submit rebuttal information. Your rebuttal can include mitigating information, information demonstrating your rehabilitation, or information correcting inaccuracies in the background check. If, within those 5 days, you notify the employer that you are obtaining information to dispute the accuracy of the background check information and need more time, the employer MUST give you 5 additional days. Then, the employer must consider the additional information you submit before making a final decision to revoke your offer.

If the employer decides to revoke your job offer after considering the additional information you submitted, it must notify you in writing, inform you of any procedure it has for challenging the decision, and inform you of your right to file a complaint with the Department of Fair Employment and Housing (DFEH).

San Francisco and Los Angeles have their own Fair Chance Ordinances that may provide additional protections.

These ordinances are very similar to the state-level Act, but there are minor differences depending on the circumstances of your history of criminal justice system involvement. For example, in San Francisco, covered employers (except those recruiting for positions involving supervision of children or dependent adults) are not allowed to consider convictions that are more than 7 years old, and applicants are also allowed 7 days, not 5 as is required under the state-level Act, to provide mitigating information and information about rehabilitation.

Have you been unlawfully discriminated against because of your history of criminal justice system involvement?

You may call us to schedule a consultation at (415)-453-4740. We recognize that the criminal justice system disproportionately impacts communities of color and has particularly adverse impacts on members of the LGBTQIA+ community, women, parents, people who are caretakers for family members, religious minorities, and people with disabilities–groups that also disproportionately face discrimination in employment.

We may be able to assist if you have experienced employment discrimination based on your protected characteristics such as race or gender, or if your history of criminal justice system involvement was unfairly considered in the employment context because of your protected characteristics.