What is the Fair Chance Act?

The Fair Chance Act prohibits California employers with five or more employees from asking job candidates about conviction history before making a conditional job offer.

•Part of the California Fair Employment and Housing Act (FEHA)

•Enforced by the California Civil Rights Department (CRD)

•Purpose: reduce employment barriers for individuals with criminal histories, improve community outcomes, and reduce recidivism

Who Must Comply?

The law applies to:

•Private employers with 5+ employees

•Public employers

•Staffing and temporary employment agencies

•Labor contractors and client employers

•Union hiring halls

Exemptions:

•Employers with fewer than 5 employees

•Law enforcement and criminal justice agencies

•Jobs where state or federal law requires a criminal background check

Pre-Offer Prohibition: Timing is Everything

Under the Fair Chance Act:

You cannot ask about criminal history until after making a conditional job offer.

Prohibited actions before a conditional offer:

•Questions on job applications about convictions

•Criminal history questions in interviews

•Conducting background checks

•Searching online/social media for criminal history

•Job postings with statements like “clean record required”

Conditional job offer: The candidate is selected for the position, pending completion of background checks or other conditions. Hiring decisions must prioritize skills and qualifications first.

Criminal History That Cannot Be Used

Even after a conditional offer, certain records cannot influence hiring decisions:

•Arrests without conviction

•Participation in diversion programs

•Expunged, sealed, or dismissed convictions

•Juvenile adjudications

•Marijuana-related convictions older than 2 years (non-felony)

Important: If a candidate’s background check reveals a conviction, you must conduct a thorough individualized assessment before rescinding the offer.

Individualized Assessment Requirements

Employers must carefully evaluate criminal history using three mandatory factors:

1. Nature and gravity of the offense

Consider context, severity, and whether circumstances like trauma, disability, or coercion contributed

2. Time elapsed since offense

Longer time since the offense generally reduces its relevance Consider conduct and achievements since the conviction

3. Nature of the job

Evaluate whether the conviction directly relates to the specific duties of the position

Evidence of Rehabilitation

Applicants may voluntarily provide evidence of rehabilitation or mitigating circumstances:

•Employment history before/after the offense

•Education, training, or counseling programs

•Community service

•Letters of recommendation

•Circumstances contributing to the offense, including disability or trauma

Employers must consider any evidence voluntarily provided.

Step-by-Step Process for Rescinding a Conditional Offer

1. Initial Individualized Assessment – Document analysis of conviction using the three factors

2. Pre-Adverse Action Notice – Provide written notice including convictions, reasoning, and 5 business days to respond

3. Five Business Days – Candidate may challenge or provide mitigating evidence

4. Reassessment – Review any new evidence before making a final decision

5. Final Notice – Provide decision, procedure to challenge, and CRD filing rights

Common Compliance Mistakes

❌ Asking criminal history questions before a conditional offer

❌ Blanket exclusions for all felony convictions

❌ Inadequate documentation of individualized assessments

❌ Considering prohibited information

❌ Skipping pre-adverse notice or five-day waiting period

❌ Ignoring reassessment requirements

Los Angeles County: Additional Requirements

Employers in unincorporated Los Angeles County must follow additional Fair Chance Ordinance rules (effective March 2024):

•Include specific Fair Chance statements in job postings

•Identify duties with a direct adverse relationship to convictions

•Provide written rationale for background checks in conditional offers

•Document all steps in the assessment process

Best Practices for Compliance

1. Update Applications and Job Postings

•Remove criminal history questions

•Add optional Fair Chance statements

2. Train Hiring Teams

•Educate managers and HR staff about timing and assessment requirements

3. Develop Clear Procedures

•Standardize conditional offer process

•Use CRD templates for notices and assessments

4. Document Everything

•Keep thorough records of assessments, notices, and applicant communications

5. Review Job Descriptions

•Ensure essential duties and responsibilities are clearly defined

6. Audit Regularly

•Check job postings and hiring practices for compliance

•Update documentation and training as laws evolve

Enforcement and Penalties

•CRD actively enforces the law

•Reviews job postings for illegal language

•Investigates complaints from applicants

•Remedies include policy changes, compensation, civil penalties, and mandatory training

•Risk of private lawsuits and reputational damage

The Business Case for Fair Chance Hiring

•Access to broader talent pool •Improved employee loyalty and retention •Support for community reintegration and reduced recidivism •Compliant hiring reduces legal and reputational risk

Research shows individuals with criminal histories often make reliable, dedicated employees when evaluated fairly.

Conclusion

The Fair Chance Act requires California employers to rethink hiring:

•Timing: Wait until after conditional offers

•Assessment: Conduct individualized evaluations using the three mandatory factors

•Process: Follow notice and waiting period procedures

By implementing clear policies, training your team, using CRD templates, and documenting decisions, employers can hire fairly, remain compliant, and build a diverse, talented workforce.

Fair chance hiring is not just a legal requirement—it’s an opportunity to strengthen your business while supporting social equity.

Resources:

California Civil Rights Department – Fair Chance Act Sample forms and compliance toolkit