How Does a Criminal Record Affect Employment in California?
In California, a criminal record does not automatically disqualify you from getting a job. State laws, particularly the Fair Chance Act, establish specific rules that employers must follow, ensuring you are judged on your qualifications first.
An employer with five or more employees is not permitted to ask about your conviction history until after they have made you a conditional job offer. Even after a background check reveals a conviction, they are not permitted to simply rescind the offer. They must conduct an “individualized assessment” to weigh whether your record has a direct relationship to the job’s duties. This process has strict notification requirements that give you the right to respond and tell your side of the story.
These protections are enforceable. If an employer sidesteps these rules, you may have legal recourse through California’s Civil Rights Department.
If you believe you were unfairly denied a job because of your criminal history, the Rodriguez Law Group helps you understand your rights. Call us at (213) 995-6767.
Key Takeaways
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California’s Fair Chance Act (“Ban the Box” law) prevents most employers from asking about your criminal record until after a conditional job offer.
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Employers must perform an individualized assessment before denying employment based on a conviction, considering the offense, time passed, and job duties.
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You have the right to written notice and at least five business days to respond before an employer can withdraw an offer.
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If an employer violates these rules, you can file a complaint with California’s Civil Rights Department (CRD).
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Post-conviction relief options like expungement or a Certificate of Rehabilitation can improve job opportunities and help you start fresh.
When Can an Employer Ask About Your Criminal Record? Understanding California’s “Ban the Box” Law
For years, a simple checkbox on a job application asking about criminal history was a barrier that screened out countless qualified people before they ever had a chance to demonstrate their skills.
This single question created a significant challenge for millions of Californians with a past conviction, making it difficult to find stable work and rebuild their lives. Studies consistently show that this practice leads to substantially higher unemployment rates for those with records, a reality that impacts families and communities.
California’s Fair Chance Act is the state’s powerful “Ban the Box” law. It makes it illegal for most employers (those with five or more employees) to inquire about your criminal record before making you a conditional offer of employment.
What Does This Mean for You?
- No questions on the application: Employers are not permitted to include questions about convictions on the initial job application form. The box is banned.
- No questions during the interview: They are not permitted to ask about your criminal history during interviews that take place before a job offer is on the table.
- Focus on your skills first: This law forces employers to evaluate you based on your qualifications, experience, and interview performance, not on a past mistake. It levels the playing field, giving you a genuine opportunity to compete for the position.
As of October 2023, these regulations were updated to provide even clearer protections. These rules now explicitly cover temporary and contract workers, expanding the law’s reach and ensuring more Californians are protected from premature and unfair disqualification.
What Happens After a Job Offer? The Background Check Process
You’ve received a conditional offer of employment. The next phase is usually the background check, which for many people is the most nerve-wracking part of the process.
You may know that something will show up on your record, but you’re not sure what they legally see or use against you. This lack of clarity is stressful and makes you feel powerless, waiting for a decision that feels entirely out of your hands.
However, California law strictly limits what information is reported and considered by an employer. You have more protections than you might think.
What a Background Check Cannot Include
Consumer reporting agencies that conduct these checks are restricted from reporting certain types of information. For most jobs, an employer will never see the following:
- The 7-Year Rule: Most criminal convictions that are more than seven years old are not reported on your background check.
- Arrests That Didn’t Lead to Conviction: If you were arrested but never convicted of a crime, that information is not held against you. An arrest is not a conviction.
- Sealed or Expunged Records: Any records that have been judicially sealed, dismissed, or expunged should not be part of the report an employer receives.
- Certain Marijuana Offenses: Most non-felony marijuana convictions that are more than two years old are also off-limits for consideration.
What May Be Included
A background check may include criminal convictions from within the last seven years. It might also report any felony convictions, regardless of how old they are. However, just because this information is reported does not mean an employer has a green light to deny you the job. They are still legally required to follow a very specific process, which we will discuss next.
Some jobs, particularly in law enforcement, education, or roles involving work with vulnerable populations, may have different legal requirements for background checks. However, for the vast majority of private employers in California, these protections are firm.
The “Individualized Assessment”: How Employers Must Evaluate Your Record
If a conviction appears on your background check, the employer does not automatically deny you the job.
They are legally required to perform an individualized assessment. This is a key protection under California’s Fair Employment and Housing Act (FEHA). The purpose of this assessment is for the employer to carefully and thoughtfully consider if your record has a “direct and adverse relationship” with the specific duties of the job you have been offered. It prevents blanket bans against anyone with a record.
This is a formal process with three main factors they must weigh:
- The Nature and Gravity of the Offense: They must consider what the crime was and how serious it was.
- The Time That Has Passed: They must take into account how long ago the offense occurred. More recent convictions are typically viewed with more concern than older ones.
- The Nature of the Job: They must analyze the specific duties of the position you are seeking. Is there a direct link between the past offense and those duties? For example, a conviction for embezzlement from a decade ago would be more relevant for a chief financial officer position than for a job as a forklift operator.
If, after conducting this assessment, the employer decides they want to move forward with rescinding the job offer, they must follow a strict, multi-step procedure outlined in the California Code of Regulations.
- Step 1: Written Notice: You must receive a written notice of their preliminary decision. This notice has to identify the specific conviction that is the basis for their decision and must include a copy of the background check report they used.
- Step 2: Your Right to Respond: You have at least five business days to respond to this notice. This is your opportunity to challenge the accuracy of the report or, more commonly, to provide evidence of your rehabilitation and other mitigating circumstances. This could include letters of recommendation, certificates from educational programs, or a personal statement explaining your growth since the conviction.
- Step 3: Final Decision: The employer is required to consider the information you provide before making a final decision. If they still decide to deny you the job, they must notify you in writing and also inform you of your right to file a complaint.
What Are Your Options If an Employer Breaks the Law?
You suspect an employer did not follow the law. Perhaps they asked about a conviction in the first interview, or maybe you received a generic rejection email right after the background check without any written notice or a chance to explain yourself.
It is frustrating and feels deeply unfair to lose an opportunity because an employer failed to follow the rules. Unfortunately, violations happen. A study found that nearly 80% of hiring decision makers violate these guidelines.
You have the right to hold them accountable. The primary way to do this is by filing a complaint with California’s Civil Rights Department (CRD).
The Complaint Process
- Filing a Complaint: You file a complaint with the CRD online, by mail, or by phone. This action initiates an official review of your case.
- Investigation: The CRD will investigate your claim. Their investigators will look for evidence that the employer violated the Fair Chance Act. This could involve reviewing their application forms, requesting documents related to their individualized assessment process, and interviewing the hiring managers involved.
- Possible Outcomes: If the CRD finds that a violation occurred, they may order remedies. These might include requiring the employer to offer you the job, providing back pay for lost wages, and forcing the company to change its hiring practices to comply with the law.
How a Lawyer Helps
Taking on an employer feels daunting, but you do not have to do it alone. A criminal defense attorney provides guidance and support throughout this process.
- Managing the CRD: An attorney helps you prepare and file a comprehensive complaint, ensuring all necessary information and evidence are included to present a strong case from the start.
- Communicating on Your Behalf: We handle all communications with the CRD investigators and the employer’s legal representatives, saving you the stress and time.
- Protecting Your Rights: We ensure that all deadlines are met and that your case is presented in the most effective way possible. The state has increased its enforcement of these laws, and having legal representation shows that you are serious about defending your rights.
Can You Clean Your Record to Improve Job Prospects?
Beyond knowing your rights during the hiring process, you also take proactive steps to change what appears on your background check in the first place. This makes your job search much smoother.
California law allows for several forms of post-conviction relief that “clean” your record for employment purposes, giving you a fresh start.
- Expungement (Dismissal under Penal Code 1203.4): This is the most common method of post-conviction relief. If you were granted and successfully completed probation, you petition the court to have your conviction set aside and the case dismissed.
- What it does: Once a conviction is dismissed under this statute, you legally and truthfully answer “no” if a private employer asks if you have ever been convicted of a crime.
- What it doesn’t do: An expungement does not erase the conviction entirely. It will still be visible for certain government jobs (like law enforcement), applications for professional licenses, and to the criminal justice system.
- Other Options: Depending on the specifics of your case, you may be eligible for other remedies. This could include a Certificate of Rehabilitation, which is a formal declaration from the court that you are now a law-abiding citizen, or petitioning the court to reduce a felony conviction to a misdemeanor.
Frequently Asked Questions About Criminal Records and Employment in California
Can an employer fire me if they find out about my criminal record after I’m hired?
It depends. If you were not truthful on your application (for example, if you were asked about convictions after a conditional offer and you lied), that could be grounds for termination.
However, if they discover a record later on, they still generally need to conduct an individualized assessment to determine if the conviction is directly relevant to your current job duties before they can take adverse action.
Are certain jobs exempt from the Fair Chance Act?
Yes. The law does not apply to employers with fewer than five employees. It also has specific exceptions for positions where a different state or federal law prohibits hiring someone with a specific conviction. This frequently applies to certain jobs in law enforcement, childcare, and some financial institutions.
What if my conviction is from another state?
The Fair Chance Act applies to employers operating in California. They must follow the same process of a conditional offer and an individualized assessment for out-of-state convictions as they do for in-state ones. They do not treat your record differently just because it is from another jurisdiction.
How do I know if an employer did a proper “individualized assessment” for my employment background check in California?
The key is the notification process. If an employer decided not to hire you based on your record but did not send you a preliminary written notice with a copy of the report and give you at least five business days to respond, they likely did not follow the law.
Can I get my record expunged if I was convicted of a felony?
In many cases, yes. If you were sentenced to probation for the felony and successfully completed it (as opposed to being sentenced to state prison), you are generally eligible for an expungement.
For certain “wobbler” offenses, it is also possible to first petition the court to reduce the felony to a misdemeanor, which then makes it eligible for dismissal.
Let Us Protect Your Fair Chance: Contact the Rodriguez Law Group
A past mistake should not permanently close the door to your future and your ability to provide for your family.
If you were denied a job and believe an employer violated California’s Fair Chance Act, you don’t have to accept it. Call the Rodriguez Law Group today at (213) 995-6767 for a confidential consultation to discuss your case.
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