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Employers who hire in California should review their procedures to ensure compliance
The California Civil Rights Division has stepped up its oversight of employer practices under the CFCA, and for California employers this means heightened risk if hiring-process policies around criminal history screening are not tightly aligned with the law. The CRD is interpreting the statute liberally and is actively pursuing administrative charges and litigation for alleged CFCA violations. Employers are therefore wise to treat CFCA compliance as a priority risk-area.
Key CFCA employer obligations – what you must know
Here are the core rules (and corresponding employer action steps) that you need to integrate into your hiring protocols.
1. Pre-offer limitations
Under the CFCA (effective January 1, 2018), most private and public employers in California with five or more employees may not ask about conviction history (and in many cases cannot use a job-application check box or screen) until after a conditional job offer is extended. Specifically:
Including a question on a job application about an applicant’s criminal conviction history is prohibited.
Inquiring into, or considering, conviction history before a conditional offer is unlawful.
The statute also prohibits consideration of arrests that did not result in conviction (with narrow exceptions), diversion program referrals or participation, and convictions that have been sealed, dismissed, expunged or statutorily eradicated.
In short: you must delay criminal-history screening until the conditional offer stage (unless a statutory exception applies).
2. Post-offer process – individualized assessment required
Once you have extended a conditional job offer, you may then inquire into and consider conviction history, but only by following the CFCA’s required process. The key steps:
Conduct an individualized assessment of the applicant’s criminal‐history record to determine whether the conviction(s) have a direct and adverse relationship to the job duties. The CRD’s guidance notes the assessment must consider at least:
the nature and gravity of the offense or conduct;
the time elapsed since the conviction and/or completion of the sentence;
the nature of the job held or sought (i.e., the specific duties and context).
If you determine that the conviction history may disqualify the applicant, you must send a preliminary written notice that identifies the disqualifying conviction(s), provide the applicant a copy of any conviction-history report relied upon, inform the applicant of the right to respond (including submission of evidence of rehabilitation or mitigation), and give at least five business days for the applicant to respond.
After considering any response, if you decide to rescind the offer (or take other adverse action), you must provide a final written notice informing the applicant of the decision and of the right to file a complaint with the CRD.
Failure to follow this process can expose an employer to CRD enforcement—even if a conviction might reasonably disqualify the applicant.
3. Covered employers and exceptions
The CFCA applies to public and private employers with five or more employees. Some exceptions apply: for example, positions in criminal-justice agencies or those for which another statute mandates a criminal-history check may be exempt from the pre-offer ban. It remains critical to assess whether the exemption truly applies. Importantly, even for exempt positions, any use of conviction history still may trigger disparate-impact scrutiny under the broader employment-discrimination laws.
Why the CRD enforcement push matters for you
The CRD is not just issuing guidance—they are investigating, settling and litigating. For example, in recent months one settlement required employer training, policy revision, and a six-figure payout when the CFCA rights of an applicant were deemed violated. By making screening practices a key focus, they are signaling that enforcement risk is elevated. As reported by Littler: “the spike in charges and lawsuits asserting CFCA violations… proactive efforts to fortify CFCA compliance can pay dividends for employers.”
For employers, that means your screening and hiring practices need review and likely revision. Key risk-areas include: job-application forms, background-check triggers, recruiter and hiring-manager training, adverse-action notice templates, internal policy documentation, and the standard operating procedure when proceeding with applicants with a record.
Practical next steps for employers
Here are recommended best-practices to stay ahead:
Remove any conviction-history question on your job application (or pre-offer materials) for covered positions; delay the inquiry to the conditional-offer stage.
Develop or update your internal policy around conviction-history screening to reflect the individualized-assessment requirements (nature/gravity/time/job relation).
Create or review your written notices (preliminary and final) for adverse actions based on criminal history.
Train recruiting, HR and hiring‐manager staff on the CFCA: the timing rules, procedural steps and risk implications.
Audit your existing applicant-pool and screening results to identify any patterns or potential exposures (for example, automatic “clean-record only” filtering, or blanket disqualifications).
Consider a privileged policy review with legal counsel to ensure your screening program aligns with the CFCA and any local “fair-chance” ordinances that may also apply.
Where to learn more
For employer-specific resources, sample forms, FAQs and updated guidance, visit the CRD’s official Fair Chance Act page: https://calcivilrights.ca.gov/fair-chance-act/ Civil Rights Department
Conclusion
With the CRD intensifying enforcement under the Fair Chance Act, California employers must treat conviction-history screening as a regulated phase of the hiring process—not simply a standard background-check step. The obligation to withhold inquiry until a conditional offer, then conduct an individualized assessment and follow notice procedures, is legally binding. By updating your process now—and training key staff—you reduce risk, stay compliant and maintain access to a broader talent pool in a competitive hiring environment.
Fair Screen is a background screening company dedicated to helping employers fairly use criminal records in the hiring process. Contact Us to learn more about how a well-tuned screening process can speed the time to hire, include more job applicants, and help ensure your consistency and compliance. Help us make a difference!
The foregoing content is not given as legal advice but is instead offered for informational purposes only. Fair Screen is not a law firm and therefore cannot offer legal advice. We always recommend speaking with an attorney who is knowledgeable about your company’s individual circumstances prior to making any hiring decisions or policy changes. Fair Screen makes no assurances regarding the accuracy or completeness of this content.