Legal Considerations When Using California Criminal Records in Hiring

Hiring decisions carry significant responsibilities, and in California, the use of criminal records in these decisions is tightly regulated to protect applicants’ rights and ensure fair treatment. Employers must navigate a complex landscape of state and federal laws to avoid legal pitfalls and potential discrimination claims. This blog post outlines the key legal considerations when using California criminal records in the hiring process.

Compliance with the Fair Chance Act

The California Fair Chance Act, often referred to as “Ban the Box,” is a pivotal piece of legislation affecting how employers can use criminal records in hiring.

Prohibition on Early Criminal History Inquiries The Fair Chance Act prohibits employers with five or more employees from asking about an applicant’s criminal history before making a conditional job offer. This means job applications and initial interviews cannot include questions about criminal records.

Individualized Assessment After a conditional offer is made, if an employer decides to withdraw the offer based on the applicant’s criminal history, they must conduct an individualized California criminal court records assessment. This involves considering:

  • The nature and gravity of the offense
  • The time that has passed since the offense or completion of the sentence
  • The nature of the job sought

Notification Requirements If an employer decides to revoke a job offer based on criminal history, they must notify the applicant in writing, providing a copy of the report and explaining their decision. The applicant must then be given a chance to respond with evidence challenging the accuracy of the report or demonstrating rehabilitation or mitigating circumstances.

Adhering to the Fair Credit Reporting Act (FCRA)

The Fair Credit Reporting Act (FCRA) sets forth additional requirements for employers who use third-party agencies to conduct background checks.

Disclosure and Consent Before obtaining a criminal background report, employers must provide a clear, written disclosure to the applicant and obtain their written consent. This disclosure must be separate from other documents and clearly inform the applicant that a background check will be conducted.

Pre-Adverse Action Process If the background check reveals criminal history that may lead to an adverse employment decision, the employer must:

  • Provide the applicant with a copy of the report
  • Supply a summary of the applicant’s rights under the FCRA
  • Allow the applicant a reasonable period (typically five business days) to dispute the report’s accuracy

Adverse Action Notification If the employer decides to take adverse action based on the report after considering any disputes, they must provide a final notice of the decision, including information about the applicant’s rights to dispute the report with the reporting agency.

Understanding State and Local Regulations

In addition to the Fair Chance Act and FCRA, employers must comply with various state and local laws that impact the use of criminal records in hiring.

California Investigative Consumer Reporting Agencies Act (ICRAA) ICRAA governs how consumer reporting agencies provide background checks to employers. It includes requirements for accuracy, confidentiality, and the need to provide applicants with copies of their reports upon request.

Local “Ban the Box” Ordinances Some California cities and counties have their own “Ban the Box” laws, which may impose stricter regulations than the state law. Employers must be aware of and comply with these local ordinances, which can include additional notice requirements and restrictions on the timing of criminal history inquiries.

Evaluating Rehabilitation and Mitigating Circumstances

California law encourages employers to consider evidence of rehabilitation and mitigating circumstances before making adverse employment decisions based on criminal records.

Evidence of Rehabilitation Employers should be open to considering:

  • Completion of rehabilitation programs
  • Positive references from previous employers
  • Community service or volunteer work
  • Stable employment history since the offense

Mitigating Circumstances Mitigating circumstances might include:

  • The age of the applicant at the time of the offense
  • The presence of any disabilities or conditions that contributed to the offense
  • A long time elapsed since the offense without any subsequent criminal activity

Limiting Access to and Use of Criminal Records

Employers must ensure that access to criminal records is restricted to individuals involved in the hiring process and that the information is used solely for employment decisions.

Confidentiality Criminal records should be kept confidential and shared only with individuals who have a legitimate need to know within the organization.

Data Security Employers should implement robust security measures to protect criminal record information from unauthorized access or breaches.

Avoiding Discrimination Claims

Employers must ensure that their use of criminal records does not result in discrimination based on race, color, national origin, sex, or other protected characteristics.

Equal Employment Opportunity Commission (EEOC) Guidelines The EEOC has issued guidelines on the use of criminal records in employment decisions, emphasizing that:

  • Employers should not have blanket policies that exclude all applicants with criminal records.
  • Decisions should be based on an individualized assessment of the applicant’s criminal history and its relevance to the job.
  • Policies should be applied consistently to all applicants to avoid disparate impact on protected groups.


Navigating the legal landscape of using criminal records in hiring in California requires a careful and informed approach. Employers must comply with state and federal laws, including the Fair Chance Act and FCRA, while considering local ordinances and EEOC guidelines. By conducting individualized assessments, respecting applicants’ rights, and maintaining confidentiality, employers can make fair and legal hiring decisions. These practices not only protect the organization from legal risks but also promote a fairer and more inclusive hiring process.