California Background Check Laws
What are California background check and ban-the-box laws?
We update this overview of California background check laws and ban-the-box rules often. But laws change quickly, and we cannot guarantee all information is current. Always consult your attorney for legal advice.
- District Laws
Fair Credit Reporting Act (FCRA)
In order to set a standard for hiring policies, the federal government created the Fair Credit Reporting Act, or FCRA, which monitors and protects both employers and job candidates.
Our Take: Arrests, indictments, misdemeanor complaints, and convictions of crimes older than 7 years cannot be reported in California. Any full pardon that has been granted or any arrest that did not lead to a conviction cannot be reported. However, any pending criminal charges can be reported.
Our Take: In California, employers – whether public or private – cannot ask a job applicant about, or make employment decisions about a job applicant based on: (1) criminal charges that did not result in a conviction; (2) pretrial or post-trial diversion programs; or (3) dismissed or sealed convictions. However, employers are permitted to ask applicants about criminal charges that are still pending.
Our Take: Before employers run a credit report on a job applicant, they must: (1) inform the applicant that a credit report could affect the employer’s decision, (2) reveal the maker of the credit report, and (3) allow the applicant to receive a free copy of the report. If the applicant decides to receive a credit report, a copy of the report must be sent to the applicant and the employer at the same time.
Our Take: Under California law, consumer reporting agencies must save the reports they make for at least two years.
Our Take: An employer cannot require an applicant to pay the costs associated with an employment drug screening.
Our Take: Employers in California can only use credit reports to make employment decisions if the position in question is: (1) a managerial position; (2) a position in the State Department of Justice; (3) a law enforcement position; (4) required by law to include a credit report; (5) one in which the applicant will work regularly with individuals’ sensitive personal information; (6) one in which the applicant will have fiduciary responsibilities on behalf of the employer or business; (7) one in which the applicant will have access to trade secrets and other valuable business information; or (8) one in which the applicant will have access to cash of $10,000 or more.
Our Take: Misdmeanor marijuana convictions more than 2 years old are considered inaccurate and not current. Therefore they cannot be reported by a CRA.
Our Take: This law prohibits both salary history inquiries and reliance on an applicant’s salary history as a factor in determining whether to offer employment or determining what salary to offer. Further, if requested, employers must provide the candidate a “pay scale” (this term is not defined in the statute) for the position being sought.
Ban-The-Box and Fair Hiring Laws
STATE LAWS — PUBLIC COMPANIES
Who must follow: This ban-the-box law applies only if you are a public sector employer in California.
Timing of inquiry: Public employers in California may only inquire into criminal history after the candidate is deemed qualified to meet minimum requirements of the position.
LOCAL LAWS — PUBLIC AND PRIVATE COMPANIES
See which California counties and cities have local ban-the-box and fair hiring laws.
STATE LAWS — PUBLIC AND PRIVATE COMPANIES
Who Must Follow: This background screening rule applies to all employers in California with at least 5 employees, regardless of those employees’ work location.
Adverse action implications:
Use of criminal records: Employers with more than 5 employees are prohibited from using criminal history in employment decisions if doing so would have an adverse impact on individuals, and
- the employer cannot prove such use is job-related and consistent with
- business necessity; or
the screening and hiring policy must be the absolute least discriminatory method for achieving the business need
Consideration of specific criminal records: The law also specifically prohibits employers from considering the following criminal records:
- An arrest or detention that did not result in conviction
- Referral to or participation in a pretrial or post-trial diversion program
- A conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to law
- Juvenile records
- A non-felony conviction for possession of marijuana that is two or more years old
Pre-adverse action notices: Employers must inform candidates of the specific offense or offenses that may lead to an adverse hiring decision with the pre-adverse action notice.
Individualized assessment strongly encouraged: Employers must demonstrate that their screening policies are job-related and consistent with business necessity. Performing an individualized assessment is the simplest path to compliance.