Criminal Barriers to Employment

If You Have a Criminal Conviction Within the Last Seven Years...

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Effective 2018, private employers (with 5 or more employees) cannot ask questions about your criminal record prior to making an offer of conditional employment, or a job offer that is conditional upon a background check.

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This does not apply to:

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• A position for which a state or local agency is required by law to conduct a conviction history background check;

• A position with a criminal justice agency;

• A position as a Farm Labor Contractor; or

• A position where an employer or agent is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history. Find examples here.

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Employers can ask about convictions after making a conditional job offer, but can’t automatically exclude applicants solely because they have a criminal conviction. If they intend to reject someone at least partly because of their criminal conviction, they must perform an individualized assessment to consider:

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• Whether the applicant’s conviction history has a direct and adverse relationship with the specific job duties;

• The nature and gravity of the offense or conduct;

• The time that has passed since the offense or conduct and completion of the sentence; and

• The nature of the job held or sought.

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If the employer decides to reject the applicant, they must notify them of a preliminary decision in writing. They do not need to include the reason for rejection, but must include:

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1. Notice of the disqualifying conviction or convictions that are the basis for the preliminary employment decision to rescind the offer;

2. A copy of the conviction history report, if any; and

3. An explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond.

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The explanation will have info on how the applicant can submit:

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• Evidence that challenges the information in the conviction history report,

• Evidence of rehabilitation, or

• Evidence of mitigating circumstances

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After receiving this notification, the applicant will have five business days to respond to the notice before the employer can make a final decision. If there are inaccuracies in the conviction history report, and the applicant notifies the employer that they will obtain evidence of this, they will have five additional business days to respond to the notice with evidence.

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The employer then will make a final decision, and if they decide to reject the applicant they must notify them of:

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1. The final denial or disqualification;

2. Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration; and

3. The right to file a complaint with the California Department of Fair Employment and Housing (DFEH).