Fair Chance Act:
Criminal History
and Employment
THE DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING
THE MISSION OF THE DEPARTMENT OF FAIR EMPLOYMENT
1 What is the Fair Chance AND Act?HOUSING IS TO PROTECT THE PEOPLE OF CALIFORNIA
FROM
The Fair Chance Act, which went intoUNLAWFUL DISCRIMINATION
effect on January 1, 2018, is aIN EMPLOYMENT,
California law that
generally prohibits employersHOUSING
with five or more
AND employees
PUBLIC from asking about
ACCOMMODATIONS, AND your conviction
FROM
history before making you a job offer. This type
THE PERPETRATION of law is also
OF ACTS known as a “Ban the
AND law.
Box”
California enacted the Fair Chance Act to reduce barriers to OF HATE VIOLENCE
employment for individuals with
conviction histories because gainful
HUMANemployment
TRAFFICKING.is essential to these individuals supporting
themselves and their families and to improving their community ties and mental health – all
of which reduce recidivism. The Fair Chance Act is part of California’s employment anti-
discrimination statute called the Fair Emploment and Housing Act (FEHA), which is enforced
by the Department of Fair Employment and Housing (DFEH). The Fair Chance Act is codified
at Government Code section 12952.
2 How does the law work?
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 that have been completed and the underlying pending
charges or conviction dismissed, sealed, or eradicated, or convictions that have been
sealed, dismissed, expunged, or statutorily eradicated
After offering you a job, employers are allowed to conduct a criminal history check, but the
law requires an individualized assessment about your conviction history. That means that
an employer can’t take back the job offer without considering the nature and gravity of the
criminal history, the time that has passed since the conviction, and the nature of the job you
are seeking. If the employer decides to take back the job offer based on your criminal history,
they must tell you so in writing, provide a copy of any conviction history report they relied on,
and give you at least five business days to respond.
3 Which employers are covered by the law?
Public and private employers with five or more employees are covered by the law. This
includes union hiring halls, labor contractors, temporary employment agencies, and client
employers. The law does not apply to certain positions at health care facilities, farm labor
contractors, or positions with state criminal justice agencies. It also does not apply to any
position where an employer is required by another law to conduct background checks or
restrict employment based on criminal history. However, while employers do not have to
comply with the requirements of the Fair Chance Act when hiring for such positions, their
use of criminal history may still be challenged as discriminatory if it has an adverse impact on
individuals in a protected basis (such as race). In such cases, the employer must show that the
consideration of criminal history is job-related and consistent with business necessity. Even if
the consideration of criminal history is job-related and consistent with business necessity, it will
be unlawful if there is a less discriminatory way to meet the business necessity.
DFEH-E13P-ENG / September 2020
Fair Chance Act: Criminal History and Employment
4 After a conditional offer of employment, what can an employer ask me about
my criminal history?
After a conditional offer, an employer may ask you if you have any history of convictions. But
employers may not ask about or consider information about (1) an arrest that did not result
in a conviction (subject to the exceptions in Labor Code § 432.7(a)(1) and (f)); (2) referral to
or participation in a pretrial or posttrial diversion program; or (3) convictions that have been
sealed, dismissed, expunged or statutorily eradicated pursuant to law. The following is an
example of a permissible question after a conditional offer:
Have you ever been convicted of a misdemeanor or felony? Answer “NO” if : (1) you have
never been convicted of a misdemeanor or felony; (2) the misdemeanor or felony was sealed,
dismissed, expunged, or reversed on appeal; (3) you withdrew your plea after completing a
court program and were not convicted of a misdemeanor or felony.
5 What happens if an employer learns about my conviction history and wants to
take back the job offer?
The law provides you with important rights if the employer wants to take back (rescind) your
conditional job offer because of your criminal history.
• Individualized assessment: The employer must make an individualized assessment about
your conviction history. That means that an employer has to consider the nature and
gravity of your criminal history (the harm caused by the criminal conduct), the amount of
time that has passed since the conviction, and the nature of the job you are seeking (the
essential functions and the job environment). The employer cannot simply say that they
won’t hire anyone convicted of a certain crime.
• Notification in writing: The employer must notify you in writing of the preliminary decision
that your conviction history disqualifies you from employment.
• Notice of disqualifying conviction: The employer must provide you a notice of the
convictions that disqualify you from employment.
• Copy of conviction history report: If the employer obtained a copy of your conviction
history report, they must provide you with a copy of the report.
• Chance to respond: The employer has to give you at least five business days to respond
to the preliminary decision to take back your job offer (and has to tell you that you can
respond). If you dispute the conviction history report, and you tell the employer within
five days, then you get an additional five days to respond.1 The employer has to tell you
that your response can include any evidence challenging the accuracy of the conviction
history report, plus any evidence of your rehabilitation or circumstances that you believe
are important for the employer to consider about your life or the crime. Examples of this
type of evidence include your employment history, an explanation of circumstances about
your involvement in the crime, and rehabilitation efforts such as education or training.
• Consideration of your response: The employer must consider any information you submit
in response.
• Final notification in writing: After considering any information you submit, the employer
must notify you in writing of any final disqualification from the job, any procedure the
employer has to challenge that final disqualification, and your right to file a complaint
with the Department of Fair Housing and Employment.
1 If notice is transmitted through a format that does not provide a confirmation of receipt, such as a written notice
mailed by an employer without tracking delivery enabled, the notice shall be deemed received five calendar days
after the mailing is deposited for delivery for California addresses, ten calendar days after the mailing for address-
es outside of California, and twenty calendar days after mailing for addresses outside of the United States 2 C.C.R
11017.01
DFEH-E13P-ENG / September 2020
Fair Chance Act: Criminal History and Employment
6 What happens if I’m applying for a job and the employer’s application asks
me about my criminal history and I do not disclose my criminal history
because the application would violate the Fair Chance Act? Can the employer
use my non-disclosure on the application of my criminal history as the sole
reason to deny me the job?
Employers who violate the prohibition on inquiring into criminal history information prior
to making a conditional offer of employment may not, after extending a conditional offer
of employment, use an employee’s failure to disclose criminal history information on the
unlawful application as a factor in subsequent employment decisions, including denial of the
position conditionally offered.
7 What should I do if I think an employer has violated the law?
Within three years of an employer’s violation of the law, you may file a complaint with
DFEH. You may do so by filling out a complaint form online in our Cal Civil Rights System,
downloading an intake form from our website and mailing it in, visiting a DFEH office, or
calling our Communication Center below.
If you think you have been a victim of employment discrimination, please contact DFEH.
TO FILE A COMPLAINT
Department of Fair Employment and Housing
dfeh.ca.gov
Toll Free: 800.884.1684
TTY: 800.700.2320
If you have a disability that requires a reasonable accommodation, DFEH can assist you with
your complaint. Contact us through any method above or, for individuals who are deaf or hard
of hearing or have speech disabilities, through the California Relay Service (711).
This guidance is for informational purposes only, does not establish DFEH-E13P-ENG / September 2020
substantive policy or rights, and does not constitute legal advice.
