Ban the Box Laws in California: Criminal History in Hiring

California Government Code § 12952, effective January 1, 2018, is among the strictest ban-the-box laws in the nation and applies to all private employers with five or more employees. Unlike the permissive federal baseline, California law affirmatively prohibits employers from asking about criminal history on application forms, in interviews, or during the initial recruitment process. The law defines 'criminal history' to include arrests, detentions, conviction records, or rehabilitation records. California's protection extends beyond federal law by explicitly protecting applicants from inquiry about these matters before a conditional job offer is extended.

Under California law, an employer may inquire about criminal history only after making a conditional job offer. Even then, the employer must comply with strict requirements: (1) the employer must provide the applicant with a notice of consideration of disqualification; (2) the employer must give the applicant at least five business days to respond to the notice; (3) the employer must engage in an individualized and documented assessment considering specific factors such as the nature and gravity of the offense, the time elapsed since the offense, the nature of the job, and evidence of rehabilitation; and (4) the employer must inform the applicant in writing of the decision and the reasons for withdrawal if the offer is rescinded. This individualized assessment requirement is significantly stronger than federal law and reflects California's policy favoring rehabilitation and second chances.

California law also prohibits employers from considering sealed, expunged, or dismissed convictions, arrests that did not result in conviction, or arrests for which the applicant was found not guilty. Additionally, under Penal Code § 1203.4, when a person completes probation or has their case dismissed, they may petition to have the record dismissed, and thereafter the person may honestly state that the arrest or conviction did not occur. Employers who inquire about or consider sealed or dismissed records in violation of Penal Code § 1203.4 are also liable. The California Department of Fair Employment and Housing (DFEH) enforces Government Code § 12952. Private employers with fewer than five employees are not covered by § 12952, but they may still face liability under Penal Code § 1203.4 or Title VII disparate impact theory if they misuse criminal history.

Step 1: Document everything immediately. Save copies of job applications, emails, interview questions, and any other materials where the employer asked about criminal history. Note the date, time, and name of the person who asked the question. Keep records of all communications with the employer regarding the position. If you were told your job offer was withdrawn after a background check, request the written explanation in writing if not already provided. Photograph or screenshot online job postings that ask about criminal history. Create a detailed timeline of events, including dates when you applied, interviewed, received a conditional offer (if any), and dates of any inquiries about criminal history.

Step 2: Understand the internal complaint process, though California law does not require it. Before filing with the DFEH, you may contact the employer's human resources department in writing to request an explanation of the violation and to preserve evidence. However, this is optional and not required by law. Do not rely on informal complaints; document everything in writing via email with read receipts. If the employer is part of a larger corporation, identify the relevant HR business partner. Request copies of any job descriptions, position requirements, or policies that relate to criminal history screening. Consider sending a formal cease-and-desist letter through an attorney, which may resolve the matter without litigation and demonstrates your seriousness.

Step 3: File a charge with the California Department of Fair Employment and Housing (DFEH). You must file within one year of the violation, though it is advisable to file as soon as possible. The DFEH is the exclusive administrative agency for state employment law violations under California Government Code § 12965. Visit dfeh.ca.gov or call 1-800-884-1684 to request a complaint form or file online. Provide your name, contact information, the employer's name and address, the date of the violation (when you were asked about criminal history or when the offer was withdrawn), a detailed description of what happened, and the specific law violated (Government Code § 12952). Include names and contact information of any witnesses. If the employer is also a federal contractor, you may also file a federal complaint with the EEOC, though California cases are typically resolved through the DFEH due to the state law's broader protections.

Step 4: Expect the DFEH investigation process, which typically takes 60 to 180 days, though it can extend longer. The DFEH will contact the employer and request documentation, including job applications, interview notes, decision letters, and the basis for any offer withdrawal. The investigator will review whether the employer asked about criminal history before a conditional offer and whether the individualized assessment process was followed. You will be contacted by a DFEH investigator who will request a detailed written statement. The employer will respond to allegations. The DFEH will determine whether there is probable cause that a violation occurred. If probable cause is found, the case may proceed to conciliation or hearing before an administrative law judge. If no probable cause is found, you retain the right to file a civil action in court.

Step 5: Consult an employment attorney specializing in discrimination law if the DFEH investigation does not resolve the matter or if you wish to pursue civil litigation. An attorney can demand damages for lost wages, emotional distress, and statutory penalties. Many employment attorneys in California work on contingency for viable cases. Contact the California Employment Lawyers Association (CELA) for referrals. If your case involves sealed or dismissed convictions, consult an attorney who handles both criminal record relief and employment discrimination simultaneously.