Written for California employers, HR directors and business owners, this guide explains the Fair Chance Act in California: the state law that controls when you may look at an applicant's conviction history and what you must do before withdrawing a job offer because of it.
Quick Takeaway
Primary Insight: Under the Fair Chance Act in California, a covered employer may not ask about or consider conviction history until after a conditional job offer has been made. If an employer decides to later withdraw that offer because of conviction history, an individualized assessment and written notice process will be required.
Key Fact: The applicant gets at least five business days to respond to a preliminary notice, and five additional business days if the applicant disputes the accuracy of the report and is gathering evidence.
Best Suited For: California employers with five or more employees, including HR directors and business owners who write job postings, order background checks or make final hiring decisions.
Written for California employers and HR leaders. Shankar Legal represents employers and businesses, not employees.
Many hiring workflows still run in a traditional sequence: application, screening call, background check, offer. The Fair Chance Act, commonly called California's "ban the box" law, reverses the last two steps of that order, and requires employers to make a preliminary job offer to an applicant before completing a background check. Additionally, the statute includes a specific set of requirements for employers who withdraw a preliminary job offer because of a conviction history. As confirmed by California’s Civil Rights Department, this law took effect on January 1, 2018, and it generally prohibits employers with five or more employees from asking a job candidate about conviction history before making a job offer.
Compliance comes down to sequence and documentation. The sections below cover who is covered, what is off limits before a conditional job offer, what a background check may include afterward, how to run the individualized assessment, the notice steps, the exceptions, and a self-audit checklist for your HR team. For the wider set of rules around recruiting, see our guide to hiring practices and California employment laws.
Who Must Follow the Fair Chance Act in California
Public employers and private employers with five or more employees must follow the Fair Chance Act in California, according to the Civil Rights Department's fact sheet. The fact sheet adds that the law covers union hiring halls, labor contractors and temporary employment agencies.
The statute is codified at Government Code section 12952, and the implementing rules appear in 2 CCR section 11017.1. The law falls under the Fair Employment and Housing Act and is enforced by the Civil Rights Department.
The regulation defines "applicant" broadly and is not limited to new hires. The law applies to an applicant who was conditionally offered a job and has started work before the employer reviews criminal history, as well as current employees who apply for a different position or are screened because of a change in ownership, management, or company policy. Although the Fair Chance Act is commonly associated with new hires, any employee may potentially fall under the protection of this wide-ranging statute.
As is common for new regulatory schemes, The Fair Chance Act has undergone recent revision. The statute was amended in October 2023, and again in October 2025. Due to the possibility of continued revision, employers should seek counsel before creating or revising a current hiring policy.
What Employers Cannot Do Before a Conditional Job Offer
Before a conditional job offer, a covered employer may not include a conviction history question on an application and may not otherwise inquire into or consider an applicant's conviction history. Section 12952, subdivision (a) sets that rule, and the regulation spells out what it reaches:
- Applications and interviews: no question that seeks disclosure of conviction history on any application, and no early inquiry in an interview or screening call.
- Background checks and internet searches: the regulation prohibits inquiries through a background check or internet search to be considered prior to the offer.
- Job postings: no statement that no person with a criminal history will be considered, such as "No Felons" or "Must Have Clean Record."
- Voluntary disclosure: if an applicant raises criminal history unprompted, the employer still may not consider other conviction history until after a conditional offer, unless an exception applies.
- Early inquiries: an employer that asks too early may not later use the applicant's failure to disclose as a factor in the hiring decision.
Due to the stringent nature of these rules, interviewer training and application templates matter as much as the actual background check policy. A single, outdated legacy checkbox on an online application form can create a violation.
What a Conditional Job Offer Allows and What Stays Off Limits
A conditional job offer allows a covered employer to run a background check, but certain aspects of an applicant’s history may not be considered under any circumstance. When reviewing an applicant’s background at any point in the hiring process, or when assessing existing employees for promotion, discipline, layoff, or termination, California employers must recognize the statute's list of prohibited categories.
California’s Fair Chance Act prohibits any consideration or inquiry of:
- Arrests or detentions that did not result in conviction, subject to limited statutory exceptions.
- Referral to or participation in a pretrial or posttrial diversion program.
- Convictions that were judicially dismissed, sealed, expunged or statutorily eradicated, or that resulted in a full pardon or certificate of rehabilitation.
- Juvenile court arrests, detentions, adjudications and dispositions.
- Non-felony marijuana possession convictions that are two or more years old.
How to Craft the Conditional Offer
The conditional offer should be in writing and should clearly state that the offer of employment depends on the results of the background check. The Civil Rights Department publishes a sample forms packet that includes a conditional job offer letter, an individual assessment form and notice templates.
Employers should be aware that consumer reporting law runs similar requirements. Both California and Federal law require a standalone written disclosure and written authorization before an employer procures a consumer report, and a copy of the report and a summary of rights must be given to an applicant before adverse action, under Cal. Civ. Code § 1785.11 and 15 U.S.C. 1681b , respectively. For California employers, the best hiring practice would be to align this compliance process with that of the Fair Chance Act, since both regulations share similar requirements.
How to Run the Individualized Assessment
An individualized assessment is a reasoned, evidence-based determination of whether an applicant's conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the position. The law requires such assessment before an employer denies a conditionally offered position because of conviction history, in whole or in part.
The Fair Chance Act statute requires the employer to consider three factors, and the text of the law adds detail to each:
- Nature and gravity of the offense or conduct: the applicant's specific conduct, whether property or people were harmed, the degree and permanence of the harm, the context, whether a disability or trauma contributed, and the applicant's age at the time.
- Elapsed time since offense: the length of time since the conduct and, where incarceration occurred, since release or completion of the sentence.
- Nature of the job being applied for: the specific duties required by the job being offered, and whether the context or type of harm behind the conviction is likely to arise in the workplace.
Two practical points follow from the text. First, the Civil Rights Department's fact sheet states that an employer cannot take an outright stance against any specific type of crime, such as a violent crime or sex offense. Rather, the assessment must look at the nature of the actual job being offered and determine why a particular type of prior offense makes the candidate unsuitable for that specific position. Second, where a disability may have contributed to the offense, the factor asks whether reasonable accommodation could address the risk of similar conduct.
The statute says an employer may, but is not required to, commit the results of the assessment to writing. However, many HR teams choose to document their reasoning process as a matter of course, because a dated record of the assessment process provides the clearest account of the decision if it is later questioned.
The Notice Steps Before and After You Withdraw a Conditional Job Offer
If a decision is made to disqualify the applicant after the individualized assessment, the employer must send a written preliminary notice, wait through the response period, reassess, and send a written final notice. Section 12952, subdivision (c) and 2 CCR 11017.1(c) set each step.
Preliminary notice
The preliminary notice must identify the disqualifying conviction or convictions and attach a copy of the conviction history report, if any. It must also explain the applicant's right to respond before the decision becomes final, state the response deadline, and inform the applicant that their response may include evidence challenging the accuracy of the report, evidence of rehabilitation or mitigating circumstances, or both. The notice may also include an explanation of the employer's reasoning process for the disqualification, but this is not required.
Response period and reassessment
The applicant must have at least five business days after receipt of the preliminary notice to respond before the employer makes a final decision. If the applicant notifies the employer in writing that the report is disputed and that the applicant is taking specific steps to obtain supporting evidence, the applicant has five additional business days. The employer must then consider whatever the applicant submits. The regulation bars employers from requiring the applicant to submit any particular evidence or refusing any evidence the applicant volunteers.
Delivery method is a factor when determining the deadline for a response. Under the regulation, a notice mailed without tracking is deemed received five calendar days after mailing for California addresses, ten for other U.S. addresses and twenty for addresses outside the United States, while an emailed notice is deemed received two business days after it is sent.
Final notice
The last written notice must state the final denial or disqualification, describe any procedure the employer has for the applicant to challenge the decision or request reconsideration, and state the applicant's right to file a complaint with the Civil Rights Department. The Civil Rights Department's sample forms include a final notice letter.
Fair Chance Act Compliance Steps at a Glance
The table below outlines each step the employer must take to comply with the Fair Chance Act, and notes which type of records should be kept to provide documentation for each action. The statute does not set a retention period for these documents, so confirm retention rules for your business with counsel.
| Step | What the employer must do | Document to keep |
|---|---|---|
| 1. Job posting and application | Remove conviction history questions and any "No Felons" or "Clean Record" language; do not inquire or search before an offer. | Dated copies of postings, application forms and interviewer guides. |
| 2. Conditional job offer | Extend a written offer that is conditional on the background check result before looking at conviction history. | Signed or dated conditional offer letter. |
| 3. Background check | Order the check only after the offer; exclude off-limits categories; satisfy federal and state consumer reporting disclosure and authorization rules. | Authorization form, vendor order record and the report received. |
| 4. Individualized assessment | If conviction history is a concern, weigh the nature and gravity of the offense, time passed and the specific job duties. | Assessment form or memo identifying the job duties and factors considered. |
| 5. Preliminary notice | Notify the applicant in writing of the disqualifying conviction or convictions, attach the report, explain the right to respond and the deadline. | Copy of the notice, the attached report and proof of delivery method and date. |
| 6. Response period and reassessment | Allow at least five business days (five more if accuracy is disputed with steps under way); consider everything submitted. | Applicant submissions, a calendar record of the deadline and a reassessment record. |
| 7. Final notice | If withdrawing the offer, notify the applicant in writing of the final decision, any challenge procedure and the right to file a complaint with the Civil Rights Department. | Copy of the final notice and the date sent. |
Exceptions to the Fair Chance Act in California
California recognizes four categories of employment that are exempt from the the Fair Chance Act, as listed section 12952, subdivision (d): 1) positions for which a state or local agency is required by law to conduct a conviction history check; 2) positions with a criminal justice agency; 3) positions as a Farm Labor Contractor; and 4) positions where the employer or its agent is required by state, federal or local law to conduct criminal background checks or to restrict employment based on criminal history. This last category includes positions at federal agencies that are considered self-regulatory (e.g. the U.S. Securities and Exchange Commission).
Exempt positions are not a free zone. The regulation states that criminal history used for an exempt position remains subject to its limits on certain categories of history and to its adverse impact rules. When relying on the fourth category as the basis for an exception, an employer should identify the specific law that requires the check before treating a role as exempt.
Blanket Conviction Policies and Adverse Impact
A blanket policy that screens out applicants for any conviction can create liability under the Fair Employment and Housing Act even when the Fair Chance Act process is followed, because the regulation separately addresses adverse impact. Under 2 CCR 11017.1(f), a hiring policy that can be shown to have an adverse impact on a protected class of applicants or employees may be prohibited, and the burden of proof will be shifted to the employer. In that situation, the employer must demonstrate that the policy is based soundly on job-related factors and consistent with business necessity.
Additionally, where an applicant or employee is disqualified under a blanket policy for conviction information that is seven or more years old, that policy will be subject to the rebuttable presumption that it is not sufficiently tailored to qualify for an affirmative defense. The Civil Rights Department's fact sheet describes that seven-year point in broader terms, so employers should work from the regulation text and have counsel review any written screening policy.
Local Ordinances That Add Requirements
Some California cities have their own fair chance rules, and employers must follow those in addition to the state law. The regulation notes that employers may be subject to local ordinances with additional limitations, and section 12952 preserves remedies under local ordinances.
San Francisco is one example. The city’s Fair Chance Ordinance page states that employers in San Francisco must comply with both the state law and the local ordinance, and employers with workplaces in other cities would be well-advised to check each local jurisdiction.
Fair Chance Act Self-Audit Checklist for Employers
A self-audit checklist gives HR teams a quick way to test their hiring process against the steps above. It is a starting point for an internal review with counsel, not a finding of compliance.
- Postings and applications: no conviction history question and no exclusionary statements. Our HR compliance checklist is a useful companion for the rest of the hiring file.
- Interviewer practice: interviewers and recruiters know not to ask about or search for criminal history before an offer.
- Conditional offer letter: the offer states in writing that it depends on the background check result.
- Vendor settings: the screening vendor filters out arrests without conviction, diversion, sealed or dismissed matters, and juvenile records.
- Assessment form: a template walks through the three factors and the specific job duties.
- Preliminary notice template: it lists the convictions, attaches the report, explains the right to respond, states the deadline and describes both types of evidence.
- Deadline tracking: the calendar counts business days from the deemed date of receipt for the delivery method used.
- Final notice template: it states the decision, any challenge procedure and the right to file a complaint with the Civil Rights Department.
- Third parties: staffing agencies, labor contractors and background check vendors follow the same sequence.
- Local rules: each city where you hire has been checked for its own fair chance ordinance.
Frequently Asked Questions About the Fair Chance Act in California
What must an employer do before asking about conviction history in California?
An employer in California must wait until after making a conditional job offer before asking about or considering an applicant's conviction history, if the employer has five or more employees and no exception applies. The statute bars conviction history questions on applications and any other inquiry or consideration before that offer, and the regulation extends the bar to background checks and internet searches.
How many days must an employer give an applicant to respond to a preliminary notice?
An employer must give an applicant at least five business days to respond to a preliminary notice that the conditional job offer may be withdrawn because of conviction history. If the applicant notifies the employer in writing that the report is inaccurate and that the applicant is taking specific steps to obtain supporting evidence, the statute requires five additional business days.
Does the Fair Chance Act apply to employers with fewer than five employees?
The Fair Chance Act in California applies to public employers and to private employers with five or more employees, so employers below that threshold fall outside the state statute, according to the Civil Rights Department. Smaller employers should still confirm whether a local ordinance or another anti-discrimination law applies to their hiring decisions.
Can employers still run a background check in California?
Employers can still run a background check in California after making a conditional job offer, provided the check stays within the limits of Government Code section 12952. Information such as arrests that did not result in conviction, diversion participation, and sealed or dismissed convictions stays off limits, and federal and state consumer reporting rules apply to the check itself.
Does an employer have to put the individualized assessment in writing?
An employer is not required by statute to put the results of an individualized assessment in writing, but the statute expressly permits it. Documenting the assessment is a practical way to show later that the employer weighed the nature and gravity of the offense, the time that has passed, and the duties of the specific job.
Building a Hiring Sequence Your HR Team Can Document
The Fair Chance Act in California rewards employers that treat the hiring sequence as a documented process: offer first, check second, assess the job against the history, and notify in writing at each decision point. A process that is written down, templated and calendared is easier to train and easier to explain.
Shankar Legal advises California employers on hiring practices, policies and workplace compliance. Employers that want professional counsel to review job postings, applications, offer letters and Fair Chance Act notice templates can learn more about our HR consulting services or contact Shankar Legal to schedule a compliance review.
Shankar Legal represents employers and businesses. Job applicants and employees with questions about their own situation should contact the California Civil Rights Department.
This article is general information for employers, not legal advice, and reading it does not create an attorney-client relationship.