Background Checks in California: Fair Chance Act Compliance for Employers

The sequence, in order

• No criminal history questions on the application, in the interview, or through a background check before a conditional offer.
• Make a genuine conditional offer of employment.
• Run the check with proper Fair Credit Reporting Act and California Investigative Consumer Reporting Agencies Act disclosures and authorization.
• If a conviction concerns you, perform an individualized assessment before deciding anything.
• Send a preliminary notice of intent to rescind, identifying the disqualifying conviction, attaching the report, and stating the applicant's right to respond.
• Give at least five business days to respond, plus five more if the applicant states they are disputing the record's accuracy.
• Consider the response, including evidence of rehabilitation and mitigating circumstances, then reassess.
• If you still rescind, send a final notice with the decision, any internal appeal procedure, and notice of the right to file a complaint with the Civil Rights Department.

What the individualized assessment must weigh

The assessment turns on the nature and gravity of the offense, the time elapsed since the offense and completion of sentence, and the nature of the job held or sought. The regulations direct employers to consider specific job duties and the actual context of the conduct, not a generic category match.

A blanket policy — no felonies, ever, for any role — is the classic failure mode. So is a checkbox assessment form with no facts in it. Write down the reasoning at the time you make the decision; reconstructing it later reads as pretext.

Records you cannot consider at all

• Arrests not resulting in conviction, with narrow exceptions.
• Referrals to or participation in pretrial or post-trial diversion programs.
• Convictions that have been sealed, dismissed, expunged, or statutorily eradicated.
• Non-felony marijuana possession convictions older than two years.
• Juvenile adjudications.
• Any conduct that the applicant's response shows is inaccurate.

Practical fixes

Audit application forms and job postings for early criminal history questions and for statements that people with records need not apply — those statements are independently unlawful. Confirm your background check vendor's templates match California requirements rather than a generic federal form. Train recruiters that the conditional offer is a real step in the sequence, not paperwork issued after the decision is made.

Rainey Law P.C. reviews hiring workflows and background check practices for California employers.