California Fair Chance Act: Can an Employer Deny You a Job Because of an Arrest or Background Check?If an employer withdrew a job offer, rejected your employment application, or questioned you about an old arrest or dismissed conviction, California law may provide important protections.
California’s Fair Chance Act and Labor Code section 432.7 restrict when most employers may ask about criminal history and what information they may use in making employment decisions. The rules differ depending on whether you are applying for a job, already employed, have a pending case, or have a conviction that was later dismissed or sealed.
Employers generally cannot use an arrest that did not result in conviction
Under Labor Code section 432.7, most California employers may not ask an applicant to disclose, seek from another source, or use as an employment factor:
- An arrest or detention that did not result in a conviction;
- A referral to or participation in a pretrial or posttrial diversion program;
- Certain juvenile-court matters; or
- A conviction that was judicially dismissed, sealed, expunged, or otherwise statutorily eradicated.
These restrictions can apply to hiring, promotion, termination, compensation, and other employment decisions. A “conviction” includes a plea, verdict, or finding of guilt even if the court did not impose a sentence. A case that was dismissed without a conviction is different.
California’s Fair Chance Act: protections before and after a conditional offer
For most employers with five or more employees, the Fair Chance Act generally prohibits asking about conviction history or ordering a criminal background report before making a conditional offer of employment. Even after a conditional offer, the employer generally may not consider an arrest that did not result in conviction, a diversion program, or a conviction that has been sealed, dismissed, expunged, or otherwise legally eradicated.
If an employer proposes to withdraw a conditional offer based on conviction history, it must generally:
- Make an individualized assessment of whether the conviction has a direct and adverse relationship to the specific job duties;
- Give the applicant a written preliminary notice identifying the conviction history relied upon and providing a copy of any background report;
- Give the applicant at least five business days to respond, including by disputing inaccurate information or providing rehabilitation and mitigating evidence; and
- Provide a written final notice if it makes an adverse decision.
A pending arrest is not the same as a conviction
The law permits a limited inquiry about an arrest for which an applicant or employee is out on bail or on their own recognizance pending trial. But that does not mean that an employer can automatically fire or reject someone simply because an arrest occurred. Employers may sometimes investigate the underlying workplace conduct independently. The legal issue is often whether the employer relied on a prohibited arrest record or instead had admissible, independently obtained evidence of conduct relevant to the job.
Important exceptions
These laws have exceptions. For example, different rules can apply where a specific law requires a particular criminal-history inquiry, where the job requires possession or use of a firearm, and for certain law-enforcement, criminal-justice, healthcare, and regulated positions. The exception must actually fit the position and the particular information at issue. An employer should not treat a general background-check practice as a blanket exception to California law.
What to save if a job offer was withdrawn
Save the job posting, application, conditional offer, emails, and texts with the recruiter or hiring manager, all background-check documents, preliminary and final adverse-action notices, and any court records showing the actual disposition of the case. Do not assume a background report is accurate. If a consumer-reporting agency supplied the report, federal background-check rules may also require advance notice, a copy of the report, and a summary of rights before adverse action is finalized.
Remedies for an unlawful arrest-record inquiry or decision
Labor Code section 432.7 permits recovery of actual damages or $200, whichever is greater, plus costs and reasonable attorney’s fees. An intentional violation may support treble actual damages or $500, whichever is greater, along with fees and costs. Other claims may be available depending on the facts, including a Fair Chance Act, discrimination, or background-reporting claim.
Speak with a California employment lawyer
If an employer asked about a non-conviction arrest, rescinded a conditional offer after a background check, or treated a dismissed or sealed conviction as disqualifying, an evaluation of the documents can identify whether the employer followed the required process and whether a viable claim exists.
Contact us if you are facing this type of issue. Please include the job title, employer, date of the conditional offer, background-check notices, and the actual disposition of the criminal case. We will respond within one business day.