The Fair Chance Act: Employment Rights for People with Criminal Records
California’s Fair Chance Act prohibits most employers from asking about criminal history before making a conditional offer of employment. If your application was rejected because of a background check — or if you were never given a fair chance to explain — the employer may have violated the law.
A criminal record follows a person into every job interview, every application, every background check. For millions of Californians, the record represents a barrier to employment that persists long after the sentence has been served, the debt has been paid, and the individual has moved on. The Fair Chance Act — also known as “ban the box” — does not erase that record. What it does is regulate when and how employers can consider it, and it ensures that applicants with criminal histories are evaluated on their qualifications first.
The statute, codified at Government Code section 12952 and Labor Code section 432.9, reflects a straightforward policy judgment: a person’s criminal history should be considered in context, not as an automatic disqualifier. And the employer that wants to use criminal history as a basis for a hiring decision must follow a specific process — one that gives the applicant notice, information, and an opportunity to respond.
What the law prohibits
The Fair Chance Act applies to employers with five or more employees. It prohibits the employer from:
Asking about criminal history before a conditional offer. The employer may not include questions about criminal history on the job application. It may not ask about criminal history in an interview. It may not conduct a criminal background check before making a conditional offer of employment. The purpose is to ensure that the applicant is evaluated on their qualifications — education, experience, skills — before criminal history enters the picture.
Using certain types of criminal history at any stage. Regardless of when the inquiry occurs, the employer may not consider: arrests that did not result in a conviction; participation in a pretrial or post-trial diversion program; convictions that have been sealed, dismissed, expunged, or otherwise rendered legally inoperative; juvenile adjudications; and convictions for certain marijuana offenses that have been redesignated or dismissed under Proposition 64.
These categorical exclusions apply at all stages — before and after the conditional offer. An employer may never use a non-conviction arrest, a sealed record, or a juvenile adjudication as a basis for denying employment.
The individualized assessment
After making a conditional offer, the employer may conduct a criminal background check. If the check reveals a conviction, the employer may not automatically rescind the offer. It must first conduct an individualized assessment — a consideration of whether the conviction is directly and adversely related to the specific duties of the job.
The assessment must consider at least three factors: the nature and gravity of the offense or conduct; the time that has passed since the offense or completion of the sentence; and the nature of the job held or sought.
These factors are drawn from the EEOC’s guidance on the use of criminal records in employment decisions, and they require the employer to evaluate the conviction in context. A ten-year-old misdemeanor is not the same as a recent felony. A conviction for financial fraud is relevant to a position handling money; it may not be relevant to a position in a warehouse. The employer must make a reasoned judgment, not a reflexive one.
The preliminary decision and the right to respond
If, after the individualized assessment, the employer tentatively decides to rescind the conditional offer based on the conviction, it must follow a specific procedure before making the decision final.
Written notice. The employer must notify the applicant in writing of the preliminary decision to rescind the offer. The notice must identify the specific conviction or convictions that are the basis for the decision.
Copy of the background check. The employer must provide the applicant with a copy of the background check report used in making the decision.
Time to respond. The applicant must be given at least five business days to respond to the notice — to provide evidence of rehabilitation, to explain the circumstances of the conviction, to correct any errors in the background check, or to provide any other information the applicant believes is relevant.
Consideration of the response. If the applicant responds, the employer must consider the response before making a final decision. Evidence of rehabilitation — completion of probation, participation in treatment programs, stable employment history, community involvement, character references — must be weighed. The employer may not ignore the response and proceed with the rescission.
Final notice. If the employer decides to rescind the offer after considering the response, it must notify the applicant in writing of the final decision, including the right to file a complaint with the Civil Rights Department.
Why the process matters
The Fair Chance Act’s procedural requirements are not formalities. They are the substance of the law. The act does not prohibit employers from considering criminal history — it prohibits them from using it as a blunt instrument, applied categorically rather than contextually.
An employer that conducts a background check, discovers a conviction, and immediately rescinds the offer — without conducting an individualized assessment, without providing notice, without giving the applicant a chance to respond — has violated the statute regardless of whether the conviction was relevant to the job. The violation is in the process, not necessarily in the outcome.
This matters because the process is where bias operates. A blanket policy of excluding all applicants with criminal records has a disproportionate impact on Black and Latino applicants — a statistical reality that the EEOC and California’s Legislature have both recognized. The individualized assessment requirement forces the employer to move beyond categorical exclusion and to evaluate each applicant as an individual.
Enforcement
An applicant who believes the Fair Chance Act was violated can file a complaint with the Civil Rights Department. The CRD can investigate, mediate, and pursue enforcement. The applicant may also have a private right of action under FEHA, since the Fair Chance Act is part of FEHA’s regulatory framework.
Remedies may include: the right to be reconsidered for the position; compensation for lost wages and emotional distress; and civil penalties. If the violation was part of a pattern — a blanket policy of excluding applicants with criminal records, for instance — the exposure may include class-wide relief.
Employers that fail to comply with the Fair Chance Act also face penalties from the Labor Commissioner. Labor Code section 432.9 provides civil penalties for violations of the pre-offer inquiry prohibition.
What applicants should know
An applicant with a criminal record is not required to disclose the record before a conditional offer is made. If the application asks about criminal history, the applicant may leave the question blank — and the employer may not reject the application for doing so.
After a conditional offer, the applicant should be prepared for a background check, but should also know their rights: the right to an individualized assessment, the right to notice of a preliminary adverse decision, the right to see the report, the right to respond, and the right to have the response considered.
If an employer rescinds an offer based on criminal history without following this process — or if the employer applies a blanket policy that excludes all applicants with any conviction — the employer has violated the Fair Chance Act. The applicant has a right to file a complaint and to seek a remedy.
If you were denied a job because of a criminal conviction — without an individualized assessment, without notice, without a chance to respond — the employer may have violated California’s Fair Chance Act. The law does not prohibit employers from considering criminal history. It requires them to consider it fairly, in context, and only after they have determined you are otherwise qualified.
This article is general information about California law and is not legal advice. Every situation turns on its particular facts.