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Criminal History and Future Employment

by | Feb 11, 2021 | Criminal History Discrimination |

Are there laws in place that protect me from discrimination based on my criminal history?
The Fair Chance Act, which went into effect on January 1, 2018, is a California law that generally prohibits employers of more than 5 employees from asking about the conviction history of an applicant before making a job offer. This type of law is also known as a “Ban the Box” law.

The Fair Chance Act makes it illegal for most employers in California to ask about the criminal record of job applicants before making a job offer. This means ads, job applications, and interview questions cannot include inquiries into an applicant’s criminal record. The purpose of the law is to allow applicants to be judged based on their qualifications.

What does the law generally prohibit employers from doing?
The law generally prohibits employers from:

  • Including on a job application any questions about conviction history before a conditional job offer has been made;
  • Asking about or considering your criminal history before a conditional job offer has been made;
  • Considering information about arrests not followed by conviction, participation in pretrial or posttrial diversion programs, or convictions that have been sealed, dismissed, expunged, or statutorily eradicated;
  • Including on a job application that a criminal history would disqualify one from employment prior to application;
  • Considering, distributing, or disseminating information about your referral to or participating in a pretrial or post-trial diversion program;
  • Not making an individualized assessment considering the nature and gravity of the conduct, the time passed, and the nature of the job held or sought;
  • Not explaining your right to submit evidence challenging the conviction history report, mitigating circumstances, or circumstances regarding your rehabilitation; and/or
  • Not notifying you in writing of your right to file a complaint with DFEH.

I received a job offer is the employer allowed to conduct a criminal history check?
After making a job offer, employers can conduct a criminal history check. But under the law, employers cannot take back a job offer based on an applicant’s criminal history without going through a process that includes:

  • Making an individualized assessment that justifies denying the applicant the position;
  • Notifying the applicant in writing of a preliminary decision to take back the offer;
  • Giving the applicant a chance to provide additional information; and
  • Notifying the applicant in writing of a final decision to take back the offer and informing the applicant of the right to complain to DFEH.