CRD-E13P-ENG / November 2022
Fair Chance Act: Criminal History and Employment
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After a conditional oer of employment, what can an employer ask me about
my criminal history?
After a conditional oer, an employer may ask you if you have any history of convictions. But
employers may not ask about or consider information about (1) an arrest that did not result
in a conviction (subject to the exceptions in Labor Code § 432.7(a)(1) and (f)); (2) referral to
or participation in a pretrial or posttrial diversion program; or (3) convictions that have been
sealed, dismissed, expunged or statutorily eradicated pursuant to law. The following is an
example of a permissible question after a conditional oer:
Have you ever been convicted of a misdemeanor or felony? Answer “NO” if : (1) you have
never been convicted of a misdemeanor or felony; (2) the misdemeanor or felony was sealed,
dismissed, expunged, or reversed on appeal; (3) you withdrew your plea after completing a
court program and were not convicted of a misdemeanor or felony.
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What happens if an employer learns about my conviction history and wants to
take back the job oer?
The law provides you with important rights if the employer wants to take back (rescind) your
conditional job oer because of your criminal history.
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Individualized assessment: The employer must make an individualized assessment about
your conviction history. That means that an employer has to consider the nature and
gravity of your criminal history (the harm caused by the criminal conduct), the amount of
time that has passed since the conviction, and the nature of the job you are seeking (the
essential functions and the job environment). The employer cannot simply say that they
won’t hire anyone convicted of a certain crime.
•
Notification in writing: The employer must notify you in writing of the preliminary decision
that your conviction history disqualifies you from employment.
•
Notice of disqualifying conviction: The employer must provide you a notice of the
convictions that disqualify you from employment.
•
Copy of conviction history report: If the employer obtained a copy of your conviction
history report, they must provide you with a copy of the report.
•
Chance to respond: The employer has to give you at least five business days to respond
to the preliminary decision to take back your job oer (and has to tell you that you can
respond). If you dispute the conviction history report, and you tell the employer within
five days, then you get an additional five days to respond.
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The employer has to tell you
that your response can include any evidence challenging the accuracy of the conviction
history report, plus any evidence of your rehabilitation or circumstances that you believe
are important for the employer to consider about your life or the crime. Examples of this
type of evidence include your employment history, an explanation of circumstances about
your involvement in the crime, and rehabilitation eorts such as education or training.
•
Consideration of your response: The employer must consider any information you submit
in response.
•
Final notification in writing: After considering any information you submit, the employer
must notify you in writing of any final disqualification from the job, any procedure the
employer has to challenge that final disqualification, and your right to file a complaint
with the Civil Rights Department.
1 If notice is transmitted through a format that does not provide a confirmation of receipt, such as a written notice
mailed by an employer without tracking delivery enabled, the notice shall be deemed received five calendar days
after the mailing is deposited for delivery for California addresses, ten calendar days after the mailing for address-
es outside of California, and twenty calendar days after mailing for addresses outside of the United States 2 C.C.R
11017.01