Updated April 10, 2026
Criminal Background Checks: What Employers Can't Legally Ask
Job applicants with criminal histories have powerful legal protections when it comes to criminal background checks for employment in California. Many employers still ask prohibited questions or use illegal screening practices that violate your rights under the Fair Chance Act. California law restricts when employers can ask about your criminal history, what information they can request, and how they must conduct background checks. Understanding these legal boundaries helps you recognize when an employer crosses the line and what steps you can take to protect your rights during the hiring process.
When employers cannot ask about criminal history
The Fair Chance Act, which went into effect on January 1, 2018, establishes strict timing rules for when employers can inquire about criminal history. Employers with five or more employees face clear prohibitions on asking about conviction history at specific points in the hiring process.
Before making a conditional job offer
Employers cannot ask about or consider your criminal history until after they extend a conditional job offer. This means they must evaluate your qualifications, skills, and experience first, without factoring in any criminal background information.
A conditional job offer represents the point where an employer has selected you for the position, pending the completion of certain requirements like background checks. Only after reaching this decision can they begin inquiring about your criminal history. The law prevents employers from using criminal background information as an early screening tool to eliminate candidates before assessing their actual qualifications.
Even if you voluntarily disclose information about your criminal history before receiving a conditional offer, the employer cannot consider any of that information until after deciding whether to make you an offer. This protection ensures employers cannot sidestep the law by waiting for applicants to volunteer information.
Employers cannot evade this requirement by having you start working before conducting the post-conditional offer review of your criminal history. The background check process must follow the proper sequence.
Public sector employers face a slightly different standard. State or local agency employers cannot ask you to disclose criminal conviction history until after they determine you meet the minimum employment qualifications for the position.
During initial job applications
Your job application cannot include any questions about conviction history. Employers must remove questions asking whether you have been convicted of a crime from their application forms.
Seeing that the law aims to give applicants a fair chance based on qualifications, employers cannot include statements in job advertisements, postings, applications, or other materials indicating that persons with criminal history will not be considered for hire. These blanket declarations violate the Fair Chance Act before the hiring process even begins.
The prohibition on initial application inquiries applies to new job seekers, existing employees who have applied for or indicated a specific desire to be considered for a different position, and existing employees subject to a review and consideration of criminal history because of a change in ownership, management, policy, or practice.
If an employer violates the prohibition on inquiring into criminal history information before making a conditional offer, they cannot later use your failure to disclose criminal history information on that unlawful application as a factor in subsequent employment decisions, including denial of the position conditionally offered.
At interview stages
Employers cannot ask questions about your criminal background during job interviews, whether initial interviews, subsequent interviews, or the final stage of the interview process if a job offer has not yet been issued. This restriction applies at every interview phase before a conditional offer.
In essence, the interview process must focus on determining whether you are otherwise qualified for the position without delving into criminal history matters. Your skills, experience, and fit for the role are the only factors employers can assess during interviews.
The prohibition covers all forms of inquiry, including verbal questions during face-to-face interviews, phone screenings, or video interviews. Employers cannot conduct background checks, perform internet searches, or otherwise investigate your criminal history before extending a conditional offer.
Types of criminal information employers cannot ask about
California law prohibits employers from asking about or considering specific categories of criminal information at any point during the hiring process. These restrictions apply regardless of when the inquiry occurs, including after a conditional job offer has been made.
Arrests that didn't result in convictions
Employers cannot ask about arrests that did not lead to convictions. This prohibition covers arrests, detentions, and any law enforcement contact where formal charges were never filed or where charges were filed but did not result in a guilty verdict.
The restriction includes situations where you were arrested but the prosecutor declined to file charges, where charges were filed but later dropped, or where you went to trial and were acquitted. Employers cannot seek this information from any source, including background check companies or direct inquiries to you.
One exception exists: employers may consider arrests where you are currently out on bail or on your own recognizance pending trial. This narrow exception applies only to pending charges where the legal process has not yet concluded.
Sealed, dismissed, or expunged convictions
Convictions that have been sealed, dismissed, expunged, or statutorily eradicated fall outside the scope of what employers can consider. When a court orders your conviction dismissed under Penal Code Section 1203.4, the conviction is withdrawn and you are released from all penalties and disabilities resulting from the offense.
After obtaining an expungement, you can legally state that you do not have a conviction when dealing with most private employers. The law prohibits these employers from asking about the previous conviction or the dismissal.
Employers also cannot consider convictions for which you have received a full pardon or have been issued a certificate of rehabilitation. These legal remedies effectively remove the conviction from employment consideration for most positions.
Diversion program participation
Referral to or participation in pretrial or post-trial diversion programs is off-limits for employer inquiries. This prohibition applies whether you successfully completed the diversion program or are currently participating in one.
Labor Code 432.7(a) explicitly states that no employer shall ask you to disclose information concerning referral to and participation in any pretrial or posttrial diversion program. Employers cannot use diversion program participation as a factor in determining any condition of employment.
Juvenile court records
Employers are strictly prohibited from asking about or using any information related to juvenile court proceedings. This includes arrests, detentions, processing, diversion, supervision, adjudication, or court disposition that occurred while you were subject to juvenile court jurisdiction.
The law defines "conviction" to exclude all adjudications made by any court with respect to persons under juvenile court jurisdiction. Juvenile court records are not considered criminal records, and employers cannot seek this information from any source whatsoever.
Convictions older than seven years
The Investigative Consumer Reporting Agency Act restricts background check companies from reporting convictions more than seven years old. This seven-year lookback period applies to most employment positions.
San Francisco employers specifically cannot consider convictions more than seven years old unless the position supervises minors or dependent adults. The seven-year limitation does not apply if you are applying for positions with an annual salary exceeding $125,000.
Questions employers are prohibited from including on job applications
Specific language on job applications violates California's Fair Chance Act when it asks about criminal history before a conditional offer. Employers must eliminate certain questions and statements from their hiring materials to comply with state law.
The conviction history checkbox
The quintessential banned element is the checkbox asking applicants to indicate whether they have a criminal history. This "check yes or no: Have you ever been convicted of a crime?" format represents exactly what Ban the Box legislation targets.
Employers must remove this checkbox from all application forms. The restriction applies whether the checkbox appears on paper applications, online application systems, or any other format used to collect candidate information. Applications from other states will not comply with California law if they retain criminal history checkboxes.
State and local government employers face similar restrictions. The question "Have you ever been convicted of a felony?" no longer appears on applications for state and local government positions. Government agencies eliminated these boxes from employment applications starting July 1, 2014.
Felony conviction questions
Any question seeking disclosure of conviction history at the application stage violates the law. Employers cannot include questions about felony convictions, misdemeanor convictions, or any other criminal conviction categories on job applications.
The prohibition extends beyond the initial application. Employers cannot ask about convictions during interviews or through any other means before extending a conditional offer. This includes questions posed verbally during phone screenings or face-to-face meetings.
After making a conditional offer, employers may ask: "Have you ever been convicted of a misdemeanor or felony?" This question becomes permissible only at this stage. The permissible question must include specific instructions for applicants to answer "NO" if they have never been convicted, if the conviction was sealed, dismissed, expunged, or reversed on appeal, or if they withdrew their plea after completing a court program.
Arrest record inquiries
Employers cannot ask about arrest records that did not result in convictions. This prohibition applies to both private and public employers and covers all stages before a conditional offer.
The restriction covers arrest and detention information regardless of how employers might phrase the question. Applications cannot request disclosure of arrests, and employers cannot consider such information as a factor in determining any employment condition.
Employers also cannot include blanket statements in job advertisements, postings, applications, or other materials indicating that persons with criminal history will not be considered. Phrases like "No Felons" or "Must Have Clean Record" violate the Fair Chance Act. These statements effectively screen out applicants before they can demonstrate their qualifications for the position.
What employers cannot do during the background check process
Once an employer extends a conditional offer and proceeds with criminal background checks for employment, the Fair Chance Act imposes strict procedural requirements. Employers who violate these background check protocols expose themselves to legal liability and discrimination claims.
Skip the individualized assessment requirement
Employers must conduct an individualized assessment of whether your conviction history has a direct and adverse relationship with the specific duties of the job that justify denying you the position. This assessment represents a mandatory step that cannot be bypassed.
The individualized assessment must consider three specific factors: the nature and gravity of the offense or conduct, the time that has passed since the offense or conduct and completion of the sentence, and the nature of the job held or sought. Employers must make a reasoned, evidence-based determination that is job-related and consistent with business necessity.
The nature and gravity evaluation includes examining the specific conduct involved, whether harm occurred to property or people, the degree and permanence of any harm, the context of the offense, and whether factors like disability or trauma contributed to the conduct. Time considerations involve assessing how long ago the offense occurred and whether sufficient time has elapsed to demonstrate rehabilitation. Job nature analysis requires evaluating the essential functions and the job environment.
Deny employment without providing written notice
If an employer makes a preliminary decision that your conviction history disqualifies you from employment, they must notify you in writing before making that decision final. The written notice must identify the conviction or convictions that form the basis for the preliminary decision. Employers must provide a copy of the conviction history report, if any was reviewed.
The notice must also inform you that you have the right to respond with evidence challenging the accuracy of the conviction history report or evidence of rehabilitation or mitigating circumstances. Employers cannot proceed to a final decision without issuing this preliminary written notice first.
Fail to give applicants time to respond
The employer must give you at least five business days to respond to the preliminary decision. This waiting period begins from the date you receive the notice, not the date the employer sends it. If you dispute the accuracy of the conviction history report and notify the employer within five days, you receive an additional five days to obtain evidence demonstrating the inaccuracy.
Employers must consider any information you submit before making a final decision on whether to rescind the conditional offer. Making a decision before the response period expires violates the law.
Use blanket policies against all people with felonies
Employers cannot adopt policies stating they will not hire anyone convicted of a certain crime. Statements in job advertisements, postings, applications, or other materials indicating that persons with criminal history will not be considered violate the Fair Chance Act. The individualized assessment requirement prevents employers from categorically excluding applicants based solely on conviction status without examining the specific circumstances.
Which employers must follow these restrictions
The Fair Chance Act applies to most California employers, though specific categories face different requirements and some positions remain exempt from coverage.
Private employers with 5 or more employees
Public and private employers with five or more employees must comply with the Fair Chance Act. This threshold became effective on January 1, 2018. The definition extends beyond traditional direct employers. It includes union hiring halls, labor contractors, temporary employment agencies, and client employers.
Similarly, the law covers joint employers, entities that evaluate an applicant's criminal history on an employer's behalf or as the employer's agent, staffing agencies, and entities that select, obtain, or provide workers from pools or availability lists.
Public sector employers
Government employers at the state and local levels fall under the Fair Chance Act when they employ five or more people. These public sector employers cannot ask about criminal history until determining an applicant meets the minimum employment qualifications for the position.
Exceptions to the Fair Chance Act
Certain positions remain exempt from Fair Chance Act requirements. The law does not apply to positions at health care facilities, farm labor contractors, or positions with state criminal justice agencies. In addition, any position where an employer is required by another law to conduct background checks or restrict employment based on criminal history is exempt. However, the exemption applies only if the employer directly faces the legal requirement, not when another entity like an occupational licensing board must conduct the check.
Conclusion
California's Fair Chance Act gives you substantial protections against discriminatory hiring practices based on criminal history. Employers must evaluate your qualifications first, conduct individualized assessments when necessary, and provide you with opportunities to respond before making final decisions. At any rate, violations of these requirements are not just technical missteps but serious legal infractions that undermine your right to fair employment consideration.
When an employer asks prohibited questions or uses illegal screening practices, document everything and consider filing a complaint with the California Civil Rights Department. Your criminal history doesn't define your qualifications, and the law recognizes that fundamental principle.
References
https://hrcalifornia.calchamber.com/hr-library/qa/can-I-ask-job-applicants-if-ever-been-convicted-of-a-crime
https://www.justanswer.com/employment-law/80ah1-california-state-completed-pre-trial-diversion.html
https://www.nelp.org/app/uploads/2015/03/DismissalsandEmployment.pdf
https://selfhelp.courts.ca.gov/clean-your-record/fair-chance-act
https://calcivilrights.ca.gov/wp-content/uploads/sites/32/2023/07/Final-Text-of-Modifications-to-Employment-Regulations-Regarding-Criminal-History.pdf
Call Setyan Law at (213)-618-3655 to schedule a free consultation.
