California ban-the-box law: the Fair Chance Act for recruiters

California's ban-the-box law, the Fair Chance Act, bars employers with five or more employees from asking about or considering an applicant's conviction history until after a conditional offer of employment. If the employer then wants to withdraw the offer because of a conviction, it has to make an individualized assessment, send a written notice of its preliminary decision with a copy of the report, wait at least five business days for a response, and send a written final notice. For recruiters the practical rule is short: nothing about criminal history on the application, the screen, the interview or a web search, and nothing in your notes.

The statute and the regulation

The law is Government Code section 12952, last amended by AB 2845 (Stats. 2018, ch. 824), effective January 1, 2019. The core prohibition in 12952(a)(2) makes it an unlawful employment practice for a covered employer "to inquire into or consider the conviction history of the applicant, including any inquiry about conviction history on any employment application, until after the employer has made a conditional offer of employment to the applicant."

The detail sits in the Civil Rights Council's regulation, 2 CCR 11017.1, amended effective October 1, 2023. It adds points a recruiter needs to know:

• Searches count. Prohibited consideration "includes, but is not limited to, inquiring about criminal history through an employment application, background check, or internet searches" (11017.1(a)(1)).
• Job ads. No statements that people with criminal history will not be considered, "such as 'No Felons' or 'Must Have Clean Record'" (11017.1(a)(2)).
• Volunteered history. If the applicant raises it before the offer, the employer still may not consider conviction history until after the offer (11017.1(a)(6)).
• Never-consider categories. Arrests not followed by conviction, diversion programs, sealed, dismissed or expunged convictions, juvenile matters, and non-felony marijuana possession convictions two or more years old may not be considered at any stage (11017.1(b)), subject to narrow exceptions such as certain health facility roles.

The Civil Rights Department also publishes a Fair Chance Act page with a fact sheet and sample notice forms.

Who is covered

• Employers with five or more employees (12952(a)).
• Staffing agencies and their clients. Under 11017.1(d), a labor contractor, union hiring hall and client employer "are governed in the same way" as other employers. An agency may not refuse to admit a worker to its pool, or refuse to refer them, because of criminal history unless it follows the full procedure, and a client employer may consider a supplied worker's conviction history only after a conditional offer.
• Exempt positions. Section 12952(d) excludes positions where a state or local agency is required by law to run a conviction check, criminal justice agency roles, farm labor contractors, and positions where an employer or its agent is required by state, federal or local law to run criminal background checks or restrict employment based on criminal history. The regulation adds that the employer itself must be the one required to run the check; a licensing board's check does not exempt the employer (11017.1(a)(5)).

What is allowed at each stage

The individualized assessment and the notices

An employer that intends to deny the position "solely or in part" because of conviction history must first assess whether the history "has a direct and adverse relationship with the specific duties of the job." The statute names three factors: the nature and gravity of the offense or conduct, the time that has passed since the offense and completion of the sentence, and the nature of the job. The regulation expands each factor, for example the harm caused, the applicant's age at the time, and whether the context of the offense is likely to arise in the workplace.

The written notice of preliminary decision must include:

1. The disqualifying conviction or convictions.
2. A copy of the conviction history report relied on, if any. The regulation says this includes consumer reports, public records, "results of internet searches" and news articles.
3. The applicant's right to respond before the decision becomes final, and that the response may include evidence challenging the report's accuracy, evidence of rehabilitation or mitigating circumstances, or both.
4. The deadline to respond: at least five business days from receipt. Under 11017.1(c)(2)(E), an email is deemed received two business days after it is sent, and untracked mail five calendar days after mailing to a California address.

If the applicant notifies the employer in writing, within that window, that they dispute the accuracy of the record and are taking specific steps to get evidence, they get at least five additional business days. The employer must consider whatever is submitted. A final decision to deny must be in writing and state the final decision, any procedure the employer has to challenge it or request reconsideration, and the right to file a complaint with the Civil Rights Department.

Staffing agencies and recruiters

California is one of the clearest states on agency coverage. Three practical consequences of 11017.1(d):

• An agency that screens for its talent pool has to run the same process: conditional offer first, then the assessment, notices and response window, judged against the duties of the jobs the worker could be assigned to.
• If the agency re-checks workers already in its pool, it cannot drop someone for a conviction it already reviewed and accepted, unless something material changed, such as the job duties or legal requirements.
• A client who says "send us only people with clean records" is asking you to break the rule on its behalf. Push back and ask whether a specific law requires a check for the role.

Penalties and enforcement

Fair Chance Act claims follow the Fair Employment and Housing Act procedures in Government Code 12965. Under 11017.1(h), an individual may file a complaint for investigation by the Civil Rights Department or obtain an immediate right-to-sue notice. The statute does not set a separate fixed fine; remedies are those available under FEHA, and 12952(e) says they are in addition to remedies under any other law, including local ordinances. California cities and counties may add their own rules; we did not check local ordinances for this page.

How it fits with FCRA adverse action

If a screening company runs the check, the federal Fair Credit Reporting Act also applies: a stand-alone disclosure and written authorization before the check, then a pre-adverse action notice with a copy of the report and the summary of rights before any rejection, and a final adverse action notice. The regulation itself points to the FCRA and California's Investigative Consumer Reporting Agencies Act (11017.1(b)(6)). Most employers combine the California preliminary notice with the FCRA pre-adverse action notice and use the longer California timeline. The step-by-step federal process is in our FCRA background check guide, and notice wording is in background check notification emails.

A script for when it comes up

The candidate volunteers a conviction on the screen

"Thanks for telling me. In California, criminal history isn't part of the process until after an offer, so I won't ask about it or note it. Let's go back to the role."

The candidate asks whether there is a background check

"If there is one, it happens only after a conditional offer. If anything in it raised a concern, you'd get a written notice, a copy of the report and at least five business days to respond before any decision."

The hiring manager asks you to look the candidate up

"California's regulation treats an internet search for a record before the offer as an inquiry. I'll leave it to the background process after the offer."

For the general version of these scripts, and the federal picture, see ban-the-box laws and interview questions.

A California checklist for recruiting desks

1. Remove conviction questions and "clean record" language from applications, intake forms, job boards and ATS screening questions for California roles.
2. Confirm at intake whether the client has five or more employees and whether the role is exempt under 12952(d), and get any claimed exemption in writing with the law that requires the check.
3. Do not search for records online before a conditional offer, and tell hiring managers not to.
4. If a candidate volunteers history, stop the topic and keep it out of the submittal and notes. See what not to write in interview notes.
5. Agree in writing who runs the check after the offer, who does the individualized assessment, and who sends each notice.
6. Use the Civil Rights Department's sample forms or your counsel's version for the preliminary and final notices, and calendar the response deadline in business days from receipt.