Friday, December 9, 2022

Applicant’s Criminal History Off Limits Until After Making Job Offer

Sarah Woolston

We want to protect our company and staff from criminals. Can we ask applicants if they have a felony conviction in our application or during their interview?

It can be very tempting to ask about felony convictions during the application process as a way to filter candidates. If you have five or more employees, however, you cannot include a question on your application asking whether the applicant has any prior felony convictions.

In fact, you cannot ask about criminal history at any time before the conditional offer of employment has been made. Covered employers cannot include any question on a job application that directly or indirectly seeks the disclosure of the applicant’s conviction history. You cannot inquire or consider the conviction history of an applicant until after a conditional offer of employment has been made.

Fair Chance Laws

It used to be common for job applications to include a box applicants would mark to note they had a felony conviction. This practice, however, drastically affected a felon’s fair chance at a job for which they otherwise would be qualified.

This is where state and local “ban-the-box” laws came in to protect applicants from having to disclose a felony conviction without a fair chance to explain any past convictions.

California’s Fair Employment and Housing Act (FEHA) and several local ordinances protect against the use of criminal history as a basis for making an offer of employment. The reason the timing is after an offer has been made is so that an applicant is not evaluated for the position based on a past conviction.

Limited Exceptions

The very limited exceptions to California’s “ban-the-box” law include:

• Positions for which a state or local government agency is required by law to conduct a conviction history background check;

• Positions with a criminal justice agency;

• Farm labor contractors (as defined in Labor Code Section 1685); or

• Positions in which an employer is required by any state, federal or local law (including the Securities Exchange Act) to check criminal background for employment purposes or to restrict employment based on criminal history.

Employers who must conduct criminal background checks to comply with various state or federal laws should consult with legal counsel.

After Conditional Job Offer

There are lawful ways you can protect your business. Once you make a conditional offer of employment, you may seek conviction history information if you follow a specific process and comply with strict notice requirements.

If you improperly obtain or use criminal history information, you can be subject to a civil lawsuit. An applicant can bring an action to recover actual damages or $200, whichever is greater, plus costs and reasonable attorney fees.

If the violation is intentional, the applicant is entitled to three times actual damages or $500, whichever is greater, plus costs and reasonable attorney fees.

In addition, an intentional violation is a misdemeanor punishable by a fine not to exceed $500. Furthermore, a violation of the ban-the-box law can result in a lawsuit under the California FEHA.

An applicant or employee also can bring a discrimination lawsuit under FEHA if the applicant or employee can show that the criminal background check practice had an adverse impact on a protected class.

More Info on HRCalifornia

For a discussion of the fair chance laws and the process for obtaining criminal history, see Restrictions on Obtaining Criminal History in the HR Library on HRCalifornia.


Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.

Sarah Woolston
Sarah Woolston
Sarah Woolston joined the CalChamber in 2022 as an employment law subject matter expert. She oversees local ordinances content, serves as a co-presenter for compliance seminars and webinars, and is an HR Adviser on the Labor Law Helpline. Woolston graduated summa cum laude from Saint Mary’s College of California with a B.A. in politics and minor in communication. She holds a J.D. from University of California, Davis School of Law, where she was the president of the King Hall Labor and Employment Law Association and an editor for the UC Davis Law Review. See full bio.

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