California employers can run background checks on employees and job applicants, but there are laws regulating when and how they run the background checks. There are also things that California background check law requires an employer disclose after running a background check. Below we discuss applicants’ rights and employer responsibilities under California background check laws. Applicants have separate rights under federal background check law.

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Can a California employer ask you about your criminal history?

California passed a law that prohibits employers — starting in 2018 — from asking job applicants on an applicant whether they have a criminal history. The law, called the California Fair Chance Act, is part of a national trend by certain states and localities to pass “ban-the-box” legislation. The “box” that is being banned is the screening checkbox on job applications that asks if you’ve ever been convicted of a crime. Many employers would use that box to screen applicants, and those with a criminal history would never move further into the application process. The Fair Chance Act is designed to give job applicants with criminal histories an opportunity to advance further into the application process, so the employer can get to know them, before the employer is allowed to do a criminal background check.

When can a California employer ask about criminal record (2019)?

California’s Fair Chance Act generally prohibits a California employer from asking any questions about criminal history or felony convictions before making a job offer.

As the California Department of Fair Employment & Housing says:

The Fair Chance Act, which went into effect on January 1, 2018, is a California law that generally prohibits employers of more than 5 employees from asking about your conviction history before making you a job offer.

Once an employer brings an applicant in for an interview and gives them a job offer, the employer is allowed to run a background check. The employer is allowed to make the job offer conditional on the applicant’s passing the background check. If the background check does not come back clean, the California Fair Chance Act requires an employer to evaluate whether the applicant should still receive the job in light of the severity of the crime, and the nature of the crime (e.g. drug use vs. bank fraud), the amount of time that has passed since conviction.

As the California Department of Fair Employment & Housing explains:

an employer can’t take back the job offer without considering the nature and gravity of the criminal history, the time that has passed since the conviction, and the nature of the job you are seeking.

If the employer decides to take back the job offer, they must explain in writing to the job applicant why they are rescinding the job offer, provide a copy of the background check they relied on, and give the job applicant 5 days to respond.

three background report letters complying with California background check law

What parts of a criminal background check is a California employer prohibited from considering?

California background check law prohibits an employer from taking into account any of the following when considering whether to hire a job applicant:

  • Arrests without a conviction
  • Detentions without a conviction
  • Referral to or participation in diversion programs
  • Dismissed convictions
  • Sealed convictions
  • Juvenile court criminal history

What happens if you fail your background check in California?

In California, there are additional protections for job applicants. First, before denying a job based on an applicant’s conviction history, employers must consider whether that applicant’s criminal history has a “direct and adverse relationship with the specific duties of that job.” Second, the job applicant has a full five days to respond to the pre-adverse action letter. Third, the final adverse action letter must notify the applicant of any way that the applicant can challenge the employer’s decision within the company, and the right to file a complaint with the Department of Fair Employment and Housing.
In Los Angeles, private employers cannot take adverse action (like not hiring an applicant) based on criminal history unless it provides the applicant with a written assessment linking the applicant’s criminal history with the job’s responsibilities.

What are the penalties for violating California background check law?

For a California law violation, you may be entitled to actual damages or $10,000 per violation, whichever is greater, as well as attorneys’ fees and costs. In certain cases, a court may award punitive damages, too.
Actual damages may consist of lost wages due to not getting the job, but stopping a job search after getting a conditional job offer. Actual damages could also include expenses incurred in applying or traveling to a job interview.
Punitive damages can be substantial — generally up to 10 times the amount of actual or statutory damages awarded.

Our California Background Check Law Attorneys

Dylan Hughes

Dylan Hughes concentrates his practice on investigating and prosecuting fraud matters on behalf of whistleblowers, consumers and employees harmed by corporate misconduct.

Steven Tindall

Steven Tindall has specialized in employment and class action litigation for eighteen years. He has been lead or co-lead counsel on several cases that resulted in settlements worth over $1 million.

Amanda Karl

Amanda represents employees, consumers and investors in complex class action lawsuits nationwide. She was a law clerk to Hon. Richard A. Paez of the Ninth Circuit Court of Appeals, and to Hon. Claudia Wilken, Northern District of California.

Aaron Blumenthal

Aaron Blumenthal represents consumers and whistleblowers in class action lawsuits involving allegations of corporate misconduct, false advertising, and defective products.

Our California Employment Law Experience

Our California employment attorneys – with over 50 years of collective experience litigating under California employment law – know how to fight for employees’ rights and get them the money they deserve. We’ve recovered tens of millions of dollars for California employees and represent individuals as well as class actions in virtually every area of California employment and labor laws: California overtime law, off the clock violations in CA, breach of contract disputes, California independent contractor law, sexual harassment, employee misclassification, discrimination, as well as mass layoffs in violation of the California WARN Act. Our California employment lawyers are repeatedly recognized for their expertise litigating in California. Founding partner Eric Gibbs has been selected as one of the Top Plaintiff Lawyers in California. And seventeen of the firm’s attorneys were selected as Northern California Super Lawyers and Rising Stars, a distinction received by less than 5% of attorneys in Northern California.

About Us

Gibbs Law Group is a California-based law firm committed to protecting the rights of clients nationwide who have been harmed by corporate misconduct. We represent individuals, whistleblowers, employees, and small businesses across the U.S. against the world’s largest corporations. Our award-winning lawyers have achieved landmark recoveries and over a billion dollars for our clients in high-stakes class action and individual cases involving consumer protection, data breach, digital privacy, and federal and California employment lawsuits. Our attorneys have received numerous honors for their work, including “Top Plaintiff Lawyers in California,” “Top Class Action Attorneys Under 40,” “Consumer Protection MVP,” “Best Lawyers in America,” and “Top Cybersecurity/ Privacy Attorneys Under 40.”

Report a violation of California background check law:

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