California Fair Chance Act: Conditional Offers, Notices, and Assessments

California’s Fair Chance Act bars most employers with five or more employees from asking about your criminal history until after they make a conditional job offer, and once a background check happens, the employer has to run an individualized assessment and follow a written notice process before rescinding that offer.¹ The law doesn’t wipe convictions out of the hiring picture. It reorders the picture so your qualifications get evaluated first and your record only enters the conversation through a structured review that ties the offense to the actual job.

Who the Law Covers

Any private employer with five or more employees has to follow the Fair Chance Act.¹ State and local government agencies are covered too, with a narrower carve-out for positions where another statute already requires a conviction background check.² The definition of employer reaches staffing agencies, labor contractors, joint employers, and any outside company that evaluates conviction history on the employer’s behalf.³

Some positions are exempt because a separate law already requires an earlier background check. That includes law enforcement jobs, positions working directly with children, some healthcare facility roles, and farm labor contractor positions.² If you’re applying to one of those, the employer can run a check earlier in the process. For everyone else, the timing rules below control.

No Questions About Your Record Before a Conditional Offer

The core “ban the box” rule is simple. Employers cannot put conviction history questions on a job application, and they cannot ask about or consider your record during interviews, until they’ve extended a conditional offer of employment.¹ The conditional offer is the bright line. Everything before it stays focused on your qualifications, experience, and fit.

The prohibition also covers indirect questions designed to surface criminal history without using the word conviction. And retaliating against someone for asserting these rights, or otherwise interfering with them, is itself a violation of the statute.¹

Records an Employer Can Never Consider

Even after a conditional offer, some records stay off-limits. Under Government Code section 12952(a)(3), employers cannot use:¹

Arrests that didn’t lead to a conviction
Records of participation in a pretrial or posttrial diversion program
Convictions that have been judicially dismissed, sealed, or expunged, or where the person received a full pardon or certificate of rehabilitation

California Labor Code section 432.7 layers on more protection. Regardless of the employer’s size, it bars asking about or using arrests that didn’t result in conviction, diversion records, or any juvenile court records at any stage of employment, from hiring to promotion to termination.⁴ The one narrow exception lets employers ask about an arrest if you’re currently out on bail or awaiting trial.

Separately, since July 2023 the California Department of Justice has been automatically clearing eligible conviction records on a rolling basis under SB 731. Probation completed without revocation, infractions, and misdemeanors qualify once a year has passed since the sentence ended; non-serious, non-violent felonies qualify after four years with no new felony convictions.⁵ Convictions cleared this way cannot be held against you in a background check.

The Individualized Assessment

If a background check after the conditional offer turns up a conviction, the employer can’t just walk away from the offer. They first have to run an individualized assessment weighing whether the conviction has a direct and adverse relationship to the specific duties of the job.¹ Three factors drive that analysis:

The nature and gravity of the offense — what actually happened, not just the charge name
How much time has passed since the offense and since the sentence ended
How the offense relates to the essential functions and environment of the position

The employer doesn’t have to put the assessment in writing, though many do as a hedge against later disputes.¹ What matters is that the decision reflects real analysis rather than a reflexive rejection. Blanket denials based on the existence of any record violate the law.

Evidence of Rehabilitation You Can Submit

When the employer moves toward rescinding, you get a chance to submit evidence of rehabilitation during the response window. Useful documentation includes:

Letters from supervisors or coworkers about your job performance, reliability, and attendance
Transcripts or completion certificates from education or job training programs
Letters from a parole or probation officer confirming compliance and clean drug tests
Documentation of volunteer work or community involvement
Records of counseling or treatment programs tied to the underlying offense
A personal statement about what has changed since the conviction

Employers have to consider this evidence before making a final call. Specific, verifiable details carry more weight than generic character references.

The Preliminary Notice and Your Response Window

If the assessment points toward rescinding, the employer must send you a written preliminary notice before anything becomes final. That notice has to include:¹

The specific conviction or convictions the employer is relying on
A copy of the conviction history report, if one exists, so you can check it for accuracy
An explanation of your right to respond and the deadline to do so

The California Civil Rights Department publishes sample notice forms employers can use to meet these requirements.⁶

After that notice arrives, you have at least five business days to respond. You can dispute the accuracy of the report, submit rehabilitation evidence, present mitigating circumstances, or all three.¹ If you notify the employer in writing within those five days that you’re gathering evidence to challenge the report’s accuracy, you get another five business days — ten in total. An employer who makes a final decision before that window closes has broken the statute, and that shortcut on its own can support a complaint.

The Final Notice

If the employer decides to go through with rescinding after reviewing your response, a second written notice is required. It must include:¹

Notification of the final denial
Any internal procedure for challenging the decision or asking for reconsideration
Notice of your right to file a complaint with the California Civil Rights Department

Plenty of applicants don’t realize this second notice is required. An employer who sends the preliminary notice and then goes quiet has not completed the process. If a final written notice never arrives after a rescinded offer, that gap is worth raising.

Current Employees Are Covered Too

The Act isn’t only for job applicants. Regulations that took effect in October 2023 extended it to current employees who face decisions about promotion, discipline, layoff, or termination based on a criminal history review.³ Under the updated rules, the term “applicant” includes existing employees who become subject to a criminal history review because of a change in ownership, management, policy, or practice.

So an employer that rolls out a new background check policy can’t retroactively screen the current workforce and fire people without running the same individualized assessment and notice process described above. If your employer recently changed hands or updated its screening practices, those protections apply to you.

How to File a Complaint

If an employer breaks the rules — by asking about your record too early, skipping the assessment, failing to send the required notices, or considering off-limits records — you can file a complaint with the California Civil Rights Department (CRD).⁷ Complaints can be filed online or through a physical intake form sent by mail.

CRD reviews the complaint to decide whether to investigate. In some cases the department offers mediation to resolve the dispute short of litigation. CRD has secured settlements approaching $100,000 in individual Fair Chance Act cases.⁸

If CRD doesn’t file a civil action within 150 days, or decides earlier not to pursue the case itself, the department will issue a right-to-sue notice so you can bring the claim in court. Available remedies include back pay, reinstatement or front pay, compensatory damages for emotional distress, and reasonable attorney’s fees. A court can also order the employer to change its practices and train its staff on Fair Chance Act compliance.⁹

1
California Legislative Information. California Government Code 12952
2
California Civil Rights Department. Fair Chance Act: Criminal History and Employment
3
New York Codes, Rules and Regulations. 2 CCR 11017.1 – Consideration of Criminal History in Employment Decisions
4
California Legislative Information. California Labor Code 432.7
5
California Legislative Information. Senate Bill 731
6
California Civil Rights Department. Fair Chance Act: Guide to Using CRD’s Sample Forms
7
California Civil Rights Department. Fair Chance Act
8
California Civil Rights Department. Civil Rights Department Launches New Online Interactive Guide to Help Combat Violations of California’s Fair Chance Act
9
California Legislative Information. California Government Code 12965