Not before extending an offer to a job applicant. Under the Fair Chance Act, it is illegal for most employers in California to ask about the criminal record of a job applicant before making a job offer.
The Fair Chance Act prohibits an employer from considering certain information pertaining to a job applicant’s criminal history. The Act does not necessarily force an employer to hire an employee who has a criminal record, but requires the employer to make a conditional offer of employment before reviewing or considering the employee’s criminal history.
During the interview process, an employer is prohibited from doing the following:
- Mentioning that a criminal conviction will prohibit an applicant for consideration;
- Asking about an applicant’s criminal record on a job application;
- Asking about an applicant’s criminal record during an interview.
An employer must review all job applicants based on their qualifications first, without looking at or asking about their criminal record. If an employer decides they want to hire the applicant, they can make a conditional offer of employment, contingent upon a criminal background check. However, even if an applicant has a criminal record, employers still must follow specific protocol under the Fair Chance Act. For example, an employer cannot consider arrests that did not result in a conviction, participation in pre-trial or post-trial diversionary programs, or convictions that have been sealed, dismissed, or expunged.
If an employer makes a conditional job offer, and then finds out that the applicant has a criminal record, the employer cannot take back the offer unless it:
- Makes an individual assessment that justifies not hiring the applicant for the position;
- Notifies the applicant in writing of the preliminary decision to revoke the offer;
- Gives the applicant the chance to provide additional information to the employer;
- Notifies the applicant of a final decision to revoke the offer; and
- Informs the applicant of their right to pursue a complaint with the Department of Fair Education and Housing.
Other Discrimination FAQs:
- Are employment discrimination claims common in California?
- Are transgender workers protected under California’s employment laws?
- Can California employers ask about my criminal record?
- Can I record conversations at work to prove I experienced discrimination or harassment?
- Can my employer fire me for filing a discrimination claim?
- Can my employer fire me if I file a discrimination claim?
- What is a hostile work environment?
- What is an adverse employment action?
- What is sex stereotyping discrimination?
- What kind of proof is required for a discrimination claim?
- What types of compensation are available in a California employment discrimination case?