California Fair Chance Act: Assessment, Notice, and Remedies

The California Fair Chance Act bars employers with five or more employees from asking about your criminal history until after they extend a conditional job offer, and if a background check later turns up a conviction, it forces the employer through a written, individualized process before the offer can be pulled. The law is codified at Government Code Section 12952 and enforced as part of the state’s Fair Employment and Housing Act.¹

Who the Law Protects

Coverage runs to every public and private employer in California with at least five employees, and it reaches both direct-hire applicants and people seeking work through labor contractors.¹ If the company you are applying to has five people on staff, assume the law applies.

Some positions sit outside the Act because a different law already requires a criminal background review. Those exempt categories are:

Criminal justice agencies, including police, sheriff’s offices, and probation departments, as defined in Penal Code Section 13101.
Jobs involving direct contact with children, the elderly, or people with disabilities where state or federal law mandates a criminal history review before hiring.
Farm labor contractors under Labor Code Section 1685.
Roles where federal law or a self-regulatory organization, such as FINRA in the securities industry, requires a criminal background check or restricts employment based on criminal history.

For those exempt positions, the employer can ask about and consider criminal history earlier in the process. For everything else, the timing rules below apply.

Records Employers Cannot Consider at All

Even after a conditional offer, some records are permanently off the table. Government Code Section 12952 and Labor Code Section 432.7 together prohibit employers from considering, sharing, or using:

Arrests that did not lead to a conviction.
Participation in a pretrial or posttrial diversion program.
Convictions that have been sealed, dismissed, expunged, or pardoned, and convictions for which you received a certificate of rehabilitation.

Labor Code 432.7 goes further and forbids employers from asking about these records at any point in the employment relationship, and it also blocks any use of juvenile records regardless of outcome.² If your conviction has been dismissed under Penal Code Section 1203.4, most private employers cannot ask about it, and you can truthfully state on an application that you have no conviction for that offense. Law enforcement positions, public office applications, and certain professional licensing agencies remain able to see the full record.

When a Criminal History Question Can First Appear

Nothing about criminal history can appear on a job application, come up in an interview, or surface in casual conversation before the employer extends a conditional offer.³ That is the “ban the box” core of the statute. A conditional offer means the employer has already decided you are qualified based on your skills, experience, and interview. Only then can a background check run or a question about past convictions be asked.¹

The Individualized Assessment

If a background check reveals a conviction, the employer cannot simply pull the offer. Before any action, the employer has to conduct an individualized assessment of whether the conviction has a direct and adverse relationship with the specific duties of the job.¹ Three factors, drawn from federal EEOC guidance, drive that assessment:⁴

The nature and gravity of the offense, focused on the actual conduct rather than the label.
The time that has passed since the offense and since completion of the sentence.
The nature of the job, meaning whether the duties create an opportunity to repeat similar conduct. A theft conviction may matter for a cash-handling role and be irrelevant for a warehouse job with no financial responsibilities.

The assessment has to be specific to you and to the actual position. Blanket policies like “we don’t hire anyone with a felony” violate the law.³

The Preliminary Notice and Your Response

If the assessment leads to a preliminary decision to revoke the offer, the employer has to send you a written preliminary notice containing all of the following:⁵

The specific conviction or convictions driving the preliminary decision.
A copy of whatever the employer relied on, whether a commercial background report, a public records search, internet search results, or news articles.
Notice that you have the right to respond.
Notice that your response can challenge the accuracy of the report and can include evidence of rehabilitation or mitigating circumstances.
The specific date by which you must respond, at least five business days from receipt.

You have at least five business days from receipt to submit a response.³ If, within those five days, you notify the employer in writing that you are disputing the accuracy of the report and gathering supporting evidence, the employer must give you at least five additional business days, for a total of ten.¹

Read the attached report closely. Errors are common: wrong dates, dismissed charges reported as convictions, and records that belong to someone else entirely. Flag each inaccuracy and get documentation. Even if the report is accurate, your response is a chance to present rehabilitation evidence and explain why the conviction does not relate to the job. Useful materials include completion certificates from educational or vocational programs, proof of steady employment since the offense, community service records, and letters from people who can speak to your character and work.

Send your response through a method that creates a delivery record. Certified mail, a courier with delivery confirmation, or email with a read receipt all protect you if there is later a dispute about whether you responded on time. The employer must pause the final decision and actually consider what you submit.³

The Final Decision

After reviewing your response, or after the response window closes without one, the employer must give you a written final notice if it still intends to deny the position. That final notice has to include the decision, information about any internal appeal the employer offers, and notice of your right to file a complaint with the California Civil Rights Department.¹

Skipping any step, sending notices without the required content, or never conducting the individualized assessment is a violation of the Act, regardless of whether the underlying hiring decision would otherwise have been reasonable.

Filing a Complaint and Available Remedies

You can file a complaint with the California Civil Rights Department (CRD), which investigates employment discrimination claims under the Fair Employment and Housing Act.⁶ The deadline is three years from the date of the alleged violation. Missing it generally forfeits the claim.

CRD can investigate, mediate, settle, or file a civil action. Remedies available for employment discrimination violations include:⁷

Back pay for wages lost from the date you should have been hired.
Front pay for future lost earnings when reinstatement is impractical.
An order requiring the employer to hire or reinstate you.
Emotional distress damages.
Punitive damages for particularly egregious conduct.
Attorney’s fees and costs if you prevail.
Required policy changes and staff training on compliance.

You can also request a right-to-sue notice from CRD and pursue the claim directly in court with your own attorney rather than waiting for the agency investigation to conclude.

Expungement Before You Apply

If you have a conviction dismissed under Penal Code Section 1203.4, the dismissal withdraws the guilty plea or verdict and releases you from most penalties of the conviction. For employment, that means most private employers cannot ask about it, and you can truthfully answer “no” to a question about whether you were convicted of that offense.² Applications for public office, state or local professional licensing, and certain government positions may still require disclosure, and law enforcement agencies and some health care facilities with access to Department of Justice records can still see the full history.

If a conviction of yours may be eligible for dismissal and you are job searching, pursuing expungement first can simplify everything that follows. Once dismissed, the conviction falls into the category of records employers cannot consider under either Government Code 12952 or Labor Code 432.7.¹

The Seven-Year Reporting Limit on Background Checks

California caps how far back a commercially prepared background check report can reach when reporting convictions at seven years. A third-party screening company hired by an employer generally cannot include conviction records older than that in its report. Records obtained directly from the California Department of Justice or the FBI are not commercially prepared and fall outside this cap.

If a background report attached to a preliminary notice includes a conviction more than seven years old, raise it in your response. The inclusion may itself violate California’s Investigative Consumer Reporting Agencies Act, and you may have additional dispute rights under the federal Fair Credit Reporting Act to challenge the accuracy of the report with the screening company directly.

1
California Legislative Information. California Code GOV 12952
2
California Legislative Information. California Code LAB 432.7
3
California Civil Rights Department. Fair Chance Act FAQ
4
U.S. Equal Employment Opportunity Commission. Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions
5
New York Codes, Rules and Regulations. 2 CCR 11017.1 – Consideration of Criminal History in Employment Decisions
6
California Civil Rights Department. Complaint Process
7
California Civil Rights Department. Employment Remedies