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.

FCRA District Laws Ban-the-box

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.

State Laws

CA Civil Code (Investigative Consumer Reporting Agencies Act) 1786.18 (a) (7) and (b) Obligations of Investigative Consumer Reporting Agencies 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.
CA Labor Code 432.7 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.
CA Civil Code (Consumer Credit Reporting Agencies Act) 1785.20.5. – Disclosure – Copy of Report 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.
1786.11. Our take: Under California law, consumer reporting agencies must save the reports they make for at least two years.
Cal. Labor Code 222.5 Our take: An employer cannot require an applicant to pay the costs associated with an employment drug screening.
[CA Labor Code §1024.5, Part 2, Division 2 of the Labor Code] 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.
A Health and Safety Code §11361.5 Our take: Misdmeanor marijuana convictions more than 2 years old are considered inaccurate and not current. Therefore they cannot be reported by a CRA.
Senate Bill AB 1676 Our take: Employers cannot consider prior salary in employment decisions: prior salary "shall not, by itself, justify any disparity in compensation."
AB 168, which adds Section 432.3 to the California Labor Code

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.

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Local Laws — Public And Private Companies

See which California counties and cities have local ban-the-box and fair hiring laws.
GET ALL BAN-THE-BOX 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

  1. the employer cannot prove such use is job-related and consistent with business necessity; or
  2. 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.

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