California Pre-Employment Inquiry Guidelines for Employers

California pre-employment inquiries are tightly limited by state law: before a conditional job offer, employers generally cannot ask about protected characteristics, prior salary, criminal convictions, credit history, disability or medical conditions, off-duty cannabis use, or personal social media logins. The rules sit in the Fair Employment and Housing Act (FEHA) and several Labor Code sections, and they apply to application forms, interview questions, and background checks alike. Violations can be pursued through the California Civil Rights Department, and the state sets no cap on compensatory or punitive damages in discrimination cases.

Questions Tied to Protected Characteristics

Government Code section 12940(d) bars employers and employment agencies from any inquiry, direct or indirect, that expresses a limitation or preference based on a protected trait. That applies whether the question sits on a paper application, appears in an online form, or comes up in conversation.¹

The protected categories are broad:

Race, color, national origin, and ancestry
Religion or religious creed
Sex, gender, gender identity, gender expression, and sexual orientation
Marital status
Age (permissible only where it is a bona fide occupational qualification, which is rare)
Physical disability, mental disability, and medical condition
Genetic information
Reproductive health decisionmaking
Veteran or military status

Indirect questions count too. “Do you have reliable childcare?” or “Is your spouse in the military?” surface information tied to sex, marital status, or veteran status, and they carry the same risk as asking directly. The workable test is whether the question relates to the applicant’s ability to do the job. If it doesn’t, it shouldn’t be asked.

Salary History and Pay Scale Disclosure

Labor Code section 432.3 prohibits employers from asking about an applicant’s prior salary, wages, or benefits. The ban covers oral and written inquiries, and it applies whether the employer asks directly or works through a recruiter or other third party.²

One exception matters. If an applicant volunteers salary history without being prompted, the employer may consider it when setting pay. The statute’s word is “voluntarily,” and casual prompting does not qualify.²

The same statute pushes information the other direction. Any employer must provide the pay scale for a position when an applicant makes a reasonable request. Employers with 15 or more employees must include the pay scale directly in every job posting. Pay scale means the salary or hourly wage range the employer reasonably expects to pay for the role.²

Criminal History Under the Fair Chance Act

The Fair Chance Act, at Government Code section 12952, applies to employers with five or more employees. It bars any inquiry into conviction history before a conditional offer has been extended. No checkbox on the application. No interview questions about past convictions. No background check until after the offer.³

Records That Are Never Fair Game

Some records are off-limits at every stage, even after a conditional offer. These include arrests that never led to a conviction, convictions that have been sealed, dismissed, or expunged, and completed diversion or deferred-judgment programs where the underlying charges were resolved. Asking about or relying on any of these is a standalone violation.³

After the Conditional Offer

If a post-offer background check turns up a conviction, the employer cannot simply rescind. It must first conduct an individualized assessment weighing the nature and seriousness of the offense, the time that has passed since the offense or completion of the sentence, and the duties of the job.³

If the employer still plans to withdraw the offer, it must send a written preliminary decision identifying the disqualifying conviction, attach any conviction history report used, and give the applicant at least five business days to respond with evidence of inaccuracy or rehabilitation. A separate written final notice is required if the employer proceeds to a final denial, and that notice must inform the applicant of the right to file a complaint with the Civil Rights Department.⁴

Credit Reports

Labor Code section 1024.5 bars most employers from pulling a consumer credit report on a job applicant. Credit checks are permitted only for a defined list of positions:⁵

Managerial positions, as defined by the executive exemption under state wage orders
Law enforcement and Department of Justice positions
Positions where credit screening is required by law
Jobs with regular access to bank account numbers, Social Security numbers, or dates of birth
Positions with financial authority, such as signing on employer bank accounts, transferring money, or entering financial contracts on the employer’s behalf
Jobs with access to trade secrets or confidential proprietary information with independent economic value
Positions with regular access to $10,000 or more in cash during the workday

Even when an exception applies, the employer still owes the applicant a written disclosure and must obtain written authorization before running the report.

Medical and Disability Questions

Before a conditional offer, an employer cannot ask about an applicant’s disability, medical condition, or medical history. The single health-related question allowed at this stage is whether the applicant can perform the essential functions of the job, with or without reasonable accommodation.⁶

After a conditional offer, medical exams and health inquiries are permitted on two conditions: the examination must be job-related and consistent with business necessity, and every applicant entering the same job classification must face the same requirement. Singling out one applicant for a medical exam while skipping others hired for the same role is not allowed.⁶

Cannabis and Drug Testing

Since January 1, 2024, Government Code section 12954, added by AB 2188, bars discrimination against applicants for off-duty cannabis use away from the workplace. It also bars penalizing an applicant based on a drug test that detects nonpsychoactive cannabis metabolites, the residue that lingers in hair, blood, or urine long after any impairment has ended.⁷

Employers can still test. A pre-employment drug test using scientifically valid methods that screen only for active THC remains permissible. What the law targets is older testing that detects metabolites weeks after use and says nothing about workplace impairment.

Several categories sit outside the rule entirely: employees in the building and construction trades, positions requiring a federal background investigation or security clearance, and jobs where drug testing is mandated by federal law, federal funding requirements, or federal contracts. Nothing in the law permits being impaired by cannabis on the job.⁷

Social Media Accounts

Labor Code section 980 prohibits employers from requiring or requesting that an applicant disclose a username or password for personal social media, access personal social media in the employer’s presence, or hand over personal social media content. Retaliating against an applicant who refuses is separately prohibited.⁸

The rule reaches personal accounts only. Employers can still review anything an applicant has made publicly available, and employer-issued devices and accounts are excluded from the ban.

Filing a Complaint

An applicant who believes an employer violated any of these rules can file a complaint with the California Civil Rights Department (CRD). Complaints start with an intake form submitted through CRD’s online system or through direct contact with the department. For employment discrimination claims, the deadline is three years from the date of the last harmful act.⁹

After submission, a CRD representative conducts an intake interview and decides whether to accept the complaint for formal investigation. An applicant who wants to go straight to court can request an immediate right-to-sue notice, but that notice from CRD is mandatory before filing a lawsuit; the department cannot be skipped.⁹

Remedies for proven violations can include back pay, front pay, hiring or reinstatement, out-of-pocket expenses, emotional distress damages, punitive damages, and attorney’s fees. Federal employment discrimination law caps compensatory and punitive damages based on employer size. California does not.¹⁰

1
California Legislative Information. California Code GOV 12940 – Unlawful Practices
2
California Legislative Information. California Labor Code 432.3 – Contracts and Applications for Employment
3
California Legislative Information. California Code GOV 12952 – Unlawful Employment Practices
4
New York Codes, Rules and Regulations. California Code of Regulations 11017.1 – Consideration of Criminal History in Employment Decisions
5
California Legislative Information. California Code LAB 1024.5
6
U.S. Equal Employment Opportunity Commission. Pre-Employment Inquiries and Medical Questions and Examinations
7
California Legislative Information. Assembly Bill 2188
8
California Legislative Information. California Code LAB 980
9
California Civil Rights Department. Complaint Process
10
California Civil Rights Department. Employment Remedies