California employers with five or more employees can’t ask about an applicant’s conviction history until after making a conditional job offer. That’s the rule in Government Code section 12952, often called the Fair Chance Act. An employer can still run a background check and can still decide not to hire, but only after an individualized assessment, a written preliminary notice, and a response period of at least five business days. Skipping those steps turns a lawful hiring decision into an unlawful employment practice.
What can’t an employer ask before an offer?
Anything about conviction history. Under Government Code section 12952(a), it’s unlawful for an employer with five or more employees “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.”
Even after the offer, some records stay off limits. The employer can’t consider arrests that didn’t lead to conviction, diversion programs, or convictions that were sealed, dismissed, or expunged.
What does Labor Code 432.7 add?
A separate damages remedy for arrest and sealed-record inquiries. Labor Code section 432.7(a)(1) bars an employer from asking about “an arrest or detention that did not result in conviction,” and it applies to employers of every size. Under subdivision (c), an applicant can recover “actual damages or two hundred dollars ($200), whichever is greater, plus costs, and reasonable attorney’s fees,” and more for intentional violations. Because the minimum is per applicant, an application form used for years can support a class claim.
What must happen before an offer is withdrawn?
A three-step process.
| Step | What the statute requires | Common mistake |
|---|---|---|
| Individualized assessment | Weigh the offense, time passed, and the job, under § 12952(c)(1) | Blanket disqualification rules |
| Preliminary written notice | Identify the conviction, attach the report, explain the right to respond | Oral notice or no report attached |
| Wait and consider | At least five business days, more if accuracy is disputed | Final decision the same day |
| Final written notice | State the decision, any appeal process, and the right to complain to the CRD | Omitting the CRD language |
The assessment asks whether the conviction “has a direct and adverse relationship with the specific duties of the job,” in the words of section 12952(c)(1)(A). Writing it down is optional, but an employer defending a claim will want the record.
Which positions are exempt?
Those where another law requires a criminal background check or bars hiring people with certain convictions. Section 12952(d) also exempts criminal justice agencies and farm labor contractors. Exemptions are read narrowly, so an employer relying on one should identify the specific law that requires the check. The federal and state background check disclosure rules still apply on top of all this, as covered in the firm’s post on FCRA and ICRAA background check claims.
What should an employer do after a Fair Chance complaint?
Reconstruct the hiring timeline.
- Preserve the job posting, the application form versions, the offer letter, the background report, and all notices sent to the applicant.
- Calendar the response deadline on any CRD complaint or demand, and check whether the EPLI policy covers applicant claims.
- Identify who reviewed the background report and who made the decision.
- Pull the dates: when the offer went out, when the report came back, when each notice was sent, and when the final decision was made.
- Talk to counsel before contacting the applicant or revising the forms mid-dispute.
Claims like these are part of defending California employers in hiring and applicant claims.
Fair Chance Act questions employers ask
Does the Fair Chance Act apply to current employees?
The statute is written for applicants, and its steps run from a conditional offer of employment. But Labor Code section 432.7 separately bars using arrests without conviction and sealed or dismissed convictions for decisions about promotion or termination. An employer reviewing a current employee’s record should apply those limits too.
Can an employer ask about a pending arrest?
Yes, in limited form. Labor Code section 432.7 allows asking about an arrest for which the person is out on bail or released on their own recognizance pending trial. The question still has to wait until after a conditional offer for employers covered by section 12952.
Do local ordinances add requirements?
Some do. Los Angeles and San Francisco have their own fair chance ordinances with additional notice and posting rules. Section 12952 says its remedies are in addition to rights under any local ordinance, so an employer operating in those cities should follow the stricter rule.
If an applicant has challenged a hiring decision
If a rejected applicant has filed a CRD complaint or sent a demand over a background check, the timing of the offer, the notices, and the assessment usually decide the case. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving conviction history in hiring. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statutes are Government Code section 12952 and Labor Code section 432.7.
This post is general information about California and federal employment law as of November 7, 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.