More than 2,500. That’s how many notices California’s Civil Rights Department says it has issued to housing providers and employers since 2021 over potential violations of state civil rights laws. So yes, California employers must still follow the Fair Chance Act, because the withdrawn guidance was federal. Government Code section 12952 and its regulation are state law, and they still control when an employer may ask about convictions and what it must do before withdrawing an offer. Skipped steps create exposure.
What did the EEOC rescind, and what federal law is left?
The EEOC withdrew a policy document, not a statute. In a press release dated October 29, 2026, the agency said the Commission “voted yesterday to rescind its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act,” which was first approved in 2012. The release says “The rescission is effective immediately.”
The same release adds two limits. The rescission “does not restore policy statements superseded by the 2012 Guidance,” and it does not “require employers to abandon any lawful practices they may have adopted in response to it.” EEOC Chair Andrea Lucas is quoted saying that “Title VII continues to prohibit discrimination based on race or national origin, including employment requirements that are proxies for intentional discrimination.”
Title VII’s text hasn’t changed either. Its disparate impact provision, 42 U.S.C. § 2000e-2(k), still makes a practice unlawful when a complaining party shows it causes a disparate impact on a protected basis and the employer “fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.” What’s gone is the agency’s road map for how it would read that standard for criminal records. For a California employer, the state rules in place since 2018 are stricter and more detailed than the federal guidance was, so the practical change is small. I wouldn’t rewrite a background check policy because of this vote.
What does the Fair Chance Act bar before a job offer?
Before a conditional offer, an employer with five or more employees can’t ask about conviction history or consider it. Section 12952(a)(2) makes it unlawful “To inquire into or consider the conviction history of the applicant, including any inquiry about conviction history on any employment application, until after the employer has made a conditional offer of employment to the applicant.”
The Civil Rights Council’s regulation, California Code of Regulations, title 2, section 11017.1, reads that ban broadly. It covers asking “through an employment application, background check, internet searches, or the use of an automated-decision system.” It also bars job ads and applications stating “that no persons with criminal history will be considered for hire,” and it names “No Felons” and “Must Have Clean Record” as examples. And an employer that asked too early can’t later use the applicant’s failure to disclose a record against them.
Some records are off limits during the background check itself. Section 12952(a)(3) bars considering an arrest not followed by conviction (with narrow exceptions), referral to or participation in a diversion program, and convictions that have been sealed, dismissed, expunged, or statutorily eradicated, or that carry a full pardon or certificate of rehabilitation. The regulation extends those limits to every stage, including later decisions about promotions and terminations.
The statute doesn’t apply to some positions, including jobs where a state, federal, or local law requires the employer to run a criminal background check or restrict employment based on criminal history. The regulation clarifies that for the background-check exemptions, “the employer or the employer’s agent must be required by law to conduct the criminal background check.” A licensing board’s own check doesn’t exempt the employer.
What has to happen before an employer withdraws a conditional offer?
Four things, in order: an individualized assessment, a written preliminary notice, a response window, and a written final notice. The statute requires each step, and a missing step can support a claim even where the conviction itself was job-related.
The individualized assessment. Section 12952(c)(1) requires the employer to assess “whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.” The employer must consider the nature and gravity of the offense, the time since the offense and completion of the sentence, and the nature of the job. The regulation adds subfactors, including whether trauma or a disability contributed to the offense and the applicant’s age at the time.
The preliminary notice. The notice is sent to the applicant in writing and must identify the disqualifying conviction, include a copy of any conviction history report, and explain the right to respond and the deadline. It must also tell the applicant that the response may include evidence challenging the report’s accuracy, evidence of rehabilitation or mitigating circumstances, or both. Under the regulation, “report” includes internet search results and news articles the employer relied on.
The response window. The statute gives the applicant “at least five business days to respond,” plus five more business days if, within those five business days, the applicant disputes the report’s accuracy in writing and is taking specific steps to get evidence. The regulation says when the clock starts: an emailed notice is deemed received two business days after it’s sent, and an untracked mailing to a California address five calendar days after it’s deposited.
The final notice. If the employer still denies the job, section 12952(c)(5) requires written notice of the final decision, any internal procedure to challenge it, and “The right to file a complaint with the department.”
The Civil Rights Department publishes sample forms for each stage, from the conditional offer letter to the final notice. They’re a reasonable starting point. They don’t do the assessment for you.
| Stage | Source | What the law requires | The record that defends it |
|---|---|---|---|
| Before the offer | Gov. Code § 12952(a); 2 CCR § 11017.1(a) | No conviction questions on applications, in interviews, by internet search, or through automated tools. No “No Felons” ads | Application forms, ad text, and screening tool settings as they existed on the hiring date |
| Assessment | § 12952(c)(1); § 11017.1(c)(1) | Individualized assessment of the statutory factors against the specific job duties | A dated, written assessment tied to the job description |
| Preliminary notice | § 12952(c)(2); § 11017.1(c)(2) | Written notice naming the conviction, a copy of the report, the response deadline, and the kinds of evidence the applicant may submit | The notice, the report attached, and proof of delivery |
| Response window | § 12952(c)(3)-(4); § 11017.1(c)(2)(E)-(F), (c)(3) | At least five business days, five more for a timely accuracy dispute, then a reassessment of what the applicant sends | The date log and a written reassessment |
| Final notice | § 12952(c)(5); § 11017.1(c)(4) | Written final decision, any challenge procedure, and the right to file with the CRD | The final notice and proof of delivery |
Can a background check policy break California law even when the Fair Chance Act doesn’t apply?
Yes. The regulation sets an adverse impact rule under the Fair Employment and Housing Act (FEHA) that works much like the federal disparate impact standard, and it says positions exempt from the Fair Chance Act’s timing rules are still subject to it. Once an applicant or employee shows that considering convictions has an adverse impact on a protected group, the regulation shifts the burden to the employer to prove the policy is “job-related and consistent with business necessity.”
Two parts of that rule matter most in litigation. Under the regulation, bright-line disqualification or consideration policies that reach “conviction-related information that is seven or more years old are subject to a rebuttable presumption that they are not sufficiently tailored,” unless laws or licensing rules governing criminal-history screening justify them. And the regulation lets state or national conviction statistics showing a substantial disparity presumptively establish adverse impact, subject to rebuttal, which means an employer may have to rebut a statistical case it didn’t build.
The rule also reaches past applicants. The regulation treats a current employee as an “applicant” when a background review follows a change in ownership, management, or policy, and the regulation says an employer “cannot evade the requirements” by letting someone start work before running the check. Staffing arrangements are covered too: a client employer violates the rule by instructing a labor contractor to refer only workers without conviction records, unless an exemption applies. Background checks are also subject to the federal Fair Credit Reporting Act and California’s Investigative Consumer Reporting Agencies Act, and the regulation notes that local ordinances may add limits.
How do Fair Chance Act claims reach employers?
Claims commonly start with an applicant whose offer was withdrawn, or with a job ad. The regulation says claims under section 12952 follow FEHA’s complaint procedures and that “An individual may file a complaint for investigation by the Department or may obtain an immediate right-to-sue notice.” A right-to-sue notice lets the person go to court, and under that rule it’s available on request, without a CRD investigation first.
The CRD also looks for problems itself. Its April 2026 release says the department “proactively conducts online sweeps of discriminatory ads” and conducts “thousands of civil rights investigations each year, including hundreds related to fair housing and protections for workers with past arrests or convictions,” according to the release. In a September 2023 release, the department said it had “secured more than 60 settlements on behalf of affected individuals” under the law since it took effect.
In my view, the strongest Fair Chance Act defense is a paper trail made at the time of the decision. The statute says the assessment “may, but is not required to,” be put in writing. I’d write it anyway. When a dispute arrives a year later, a dated assessment that ties the specific conviction to the specific duties of the job is the employer’s best evidence, and its absence is the plaintiff’s best argument. The other common weak spot is the response window: an offer withdrawn on day four, or before a timely accuracy dispute was answered, is hard to defend no matter how serious the conviction was.
How to keep a background check process defensible
When an applicant complains, a CRD notice arrives, or a demand letter cites the Fair Chance Act, these steps protect the employer’s position:
- Put a litigation hold on the job posting, the application, the background report, the assessment and reassessment forms, every notice sent, and the emails and texts among the people who made the hiring decision.
- Calendar the response deadline on the CRD notice or the complaint, and check for an arbitration agreement and for notice requirements in any employment practices liability (EPLI) policy.
- Identify who saw the background report and who made the final decision, and make sure nobody takes further action against the applicant or any current employee involved that could look like retaliation.
- Rebuild the timeline: when the conditional offer went out, when the report came back, when each notice was sent and received, and how many business days the applicant had.
- Talk to a lawyer before responding to the CRD, contacting the applicant or the applicant’s lawyer, or offering anything to settle.
The firm’s page on employer defense in California employment cases describes how the firm defends discrimination allegations and the records it compares them against.
Fair Chance Act questions from California employers
Does the Fair Chance Act apply to a company with fewer than five employees?
No. Section 12952 applies to employers “with five or more employees.” The regulation defines “employer” to include labor contractors and staffing agencies, so a covered agency must follow the law even when it supplies workers to a small company. The regulation also cites Labor Code sections 432.7 and 432.8, which separately restrict use of arrest records and certain marijuana convictions, and local ordinances may reach smaller employers.
Can we still run criminal background checks in California?
Yes, after a conditional offer. Section 12952(b) says the law shall not “prevent an employer from conducting a conviction history background check” that doesn’t conflict with subdivision (a). What changes is the timing and the process: no checks before the offer unless the position is exempt, no reliance on the categories the statute bars, and the full individualized assessment and two-notice procedure before withdrawing an offer because of a conviction.
Do we have to hire someone if we withdrew an offer without following the steps?
Not automatically. Section 12952 doesn’t set its own remedies. Claims run through FEHA’s enforcement procedures, and the relief depends on the facts, including whether the conviction actually had a direct and adverse relationship to the job. That’s why the assessment record matters so much: it can narrow the case to a notice defect, not a refusal to hire on discriminatory grounds.
Does the EEOC rescission change anything for California employers?
Very little in practice. The EEOC says its rescission doesn’t require employers to drop lawful practices adopted under the 2012 guidance, and Title VII’s disparate impact standard is still in the statute. California’s statute and regulation, which are more specific than the federal guidance ever was, aren’t affected by the federal vote. Keep the state process in place.
If an applicant or the CRD is challenging a withdrawn job offer
If your company has received a CRD complaint or a demand letter over a withdrawn offer, the dates on the notices and the written assessment usually decide how strong the claim is. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving criminal background checks. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The EEOC’s announcement is its October 29, 2026 press release. The federal disparate impact standard is 42 U.S.C. § 2000e-2(k). The Fair Chance Act is Government Code section 12952, and its regulation is California Code of Regulations, title 2, section 11017.1. The Civil Rights Department’s enforcement figures come from its April 23, 2026 and September 6, 2023 press releases, and its sample forms are on its Fair Chance Act forms page.
This post is general information about California and federal employment law as of November 5, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.