What Is California’s Fair Chance Act?

California has long been a forward-thinking state with expansive labor laws protecting employees’ rights as well as comprehensive anti-discrimination laws. One such law was enacted in 2018 with revisions in 2023 to further extend protections. California’s Fair Chance Act (FCA) prohibits employers from including a check box on job applications to ask if the prospective employee has a criminal history, for this reason, the law became known as the “Ban the Box” Law.

Understanding the Fair Chance Act in California

A common misconception is that the Fair Chance Law means California employers must hire applicants regardless of their criminal history. This isn’t accurate since labor laws in California also protect employers’ rights. Instead, according to the Fair Chance Act under California Assembly Bill No. 1008 the law states the following:

“The bill requires an employer who intends to deny an applicant a position of employment solely or in part because of the applicant’s conviction history to make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job, and to consider certain topics when making that assessment.”

In other words, under the Fair Chance Act in California, an employer cannot ask about an applicant’s criminal history until after offering them a provisional or conditional offer of employment. Once they’ve made an offer without knowing the applicant’s criminal history, they may then ask if the applicant has a history of prior convictions and perform an assessment of the criminal history to determine if it impacts their employment.

Under the FCA, employers also cannot ask about the following:

• Any arrests that didn’t lead to a conviction
• Participation in a diversion program
• Sealed, expunged, or discharged records

The act’s intention is to allow employers to make preliminary hiring decisions based on the applicant’s qualifications alone, essentially giving those with a criminal history a fair chance to get a foot in the door because an employer cannot judge them on their criminal record alone but must first consider their qualification for the job. If you believe you have been wrongfully discriminated against based on your criminal history, contact our Orange County workplace discrimination attorneys who can investigate your case and ensure that your rights are protected.

Does the Fair Chance Act Apply to All Employers?

Any employer with five or more employees must follow the Fair Chance Act. Exceptions to the law include those hiring for law enforcement and criminal justice positions or for jobs that require a criminal background check such as in schools and daycare centers.

What Revisions Did California Make to the Fair Chance Act in 2023?

California legislature expanded the definitions of “employer” and “employee” to allow more applicants to fall under the protection offered by the FCA. The act now covers employees seeking promotions or new positions under a current employer and also protects existing employees from an employer questioning their criminal history when new management or a change in business ownership occurs.

The changes to the definition of employer now include staffing agencies or other entities that control hiring on behalf of an employer.

Can An Employer Rescind a Job Offer After Checking Criminal History?

Employers have a right to rescind a provisionary job offer after performing an individualized assessment of an applicant’s criminal record. Under FCA, they must provide the applicant with a copy of their criminal record, a written notification that the criminal record disqualifies them, and a notification about which part of the criminal record eliminated them from consideration for the job. They then must allow the applicant up to five days to respond to the decision. After reviewing the response, they then make a final decision. If you have any further questions regarding California’s FCA, contact our Orange County employment lawyers.