Here's the direct answer. In California, you can't ask about a candidate's criminal history, not on the application, not in an interview, until after you've made them a conditional job offer. That's the rule under the Fair Chance Act, California Government Code 12952.
This is a different rule from California's 7-year reporting cap, which I covered in a separate article. That one controls what shows up on the report. This one controls when you're allowed to ask for it, and what you owe someone before you act on what you find.
Mixing the two up is common. Let's walk through the timing rule on its own.
The Fair Chance Act covers California employers with 5 or more employees. If that's you, criminal history stays off the table until after a conditional offer.
There are a few narrow exceptions: some criminal justice agency jobs, certain roles where a background check is required by another law, some farm labor contractor positions. If you think your role might qualify, don't assume it. Check with a lawyer before you rely on it.
This part trips people up because it covers more than the interview. A job posting can't say "no felons" or "must have a clean background." That has to wait too.
You can't ask about it on the application. You can't ask about it in the interview, even if the candidate brings it up first. All of that waits for the same moment.
Once you've extended a conditional offer, meaning the job is theirs pending the background check, that's when a criminal history check can happen. Not before.
Say the report comes back with something on it. You still can't just pull the offer. California requires what's called an individualized assessment, and it has three parts.
You weigh the nature and seriousness of the offense. You weigh how much time has passed since it happened. And you weigh whether it actually relates to the job the person's being hired for.
A ten-year-old shoplifting conviction and a warehouse job is a different conversation than a recent theft conviction and a cash-handling job. Same kind of record, different weight, because the job is different.
So to say that a different way: the law doesn't let you treat every conviction the same. It makes you think about this person, this record, and this job, before you decide anything.
Say you go through that assessment and you're still leaning toward pulling the offer. You don't get to just do it.
You owe the applicant a written notice first. It needs to name the specific conviction you're relying on, include a copy of the conviction history report, and explain that they have a right to respond.
They get at least 5 business days to respond. If they tell you within that window they're disputing the record's accuracy or gathering evidence, like proof of rehabilitation, you owe them at least 5 more business days on top of that.
That's not a courtesy. It's the law.
If you still decide to withdraw the offer after all that, you send a second notice with the final decision. That notice has to tell the applicant about their right to file a complaint with California's Civil Rights Department.
Skip any of these steps and a withdrawn offer can turn into a real legal problem, even when the underlying conviction was one you were allowed to consider in the first place.
Here's where the two California rules actually fit together. They're not competing. They're stacked.
The 7-year rule controls what your background check company can put on the report at all. It's a data rule.
The Fair Chance Act controls what you do once that data lands in your hands: when you're allowed to ask for it, and what you owe someone before you act on it. It's a process rule.
A record can pass the 7-year test, meaning it's legally reportable, and you can still get the timing wrong by asking too early or skipping the individualized assessment. Getting one right doesn't mean you got the other one right too. Treat them as two separate checklists, not one.
No. The Fair Chance Act doesn't carve out phone screens or informal conversations. The line is the conditional offer, not the format of the conversation.
Not quite. It means the job is theirs contingent on things like the background check clearing. It's a real offer, just one with a condition attached, and that condition is what lets you run the check at all.
Then you can move forward with the final decision, assuming you've actually met the notice requirements first. Silence on their end isn't a violation. Skipping the notice step on yours is.
The Fair Chance Act itself doesn't apply below 5 employees. I still wouldn't assume you're fully clear of this, though. Some California cities set their own, stricter thresholds. Check with a lawyer for your specific location.