California Background Check Laws: Complete Guide

California maintains some of the most comprehensive and employee-protective background check laws in the United States. Whether you’re an employer conducting pre-employment screening, a landlord evaluating tenants, or an individual seeking to understand your rights, navigating California background check laws requires careful attention to both state and local requirements.

The Golden State has established extensive protections for job applicants and employees, including robust fair chance hiring laws, strict limitations on how criminal records can be used in employment decisions, and detailed procedural requirements for employers. These laws often exceed federal protections under the Fair Credit Reporting Act (FCRA), creating additional obligations for those conducting background checks.

Key Differences from Federal Law

California background check laws go significantly beyond federal FCRA requirements in several critical areas. The state has implemented comprehensive “ban the box” legislation that delays criminal history inquiries until later in the hiring process. California also provides stronger protections for individuals with criminal records, including limitations on considering certain types of convictions and requirements for individualized assessments.

Additionally, California’s Investigative Consumer Reporting Agencies Act (ICRAA) creates state-level requirements that parallel and sometimes exceed FCRA obligations. The state also has specific industry regulations that may impose additional background check requirements or restrictions depending on the type of work involved.

Why California State Laws Matter

Understanding California-specific background check laws is essential because state and local requirements create additional layers of compliance beyond federal law. Violations of California background check laws can result in significant penalties, including statutory damages, attorney’s fees, and regulatory enforcement actions. For employers operating in California, failing to comply with state requirements can expose organizations to costly litigation and regulatory scrutiny.

The complexity increases when considering that many California cities and counties have enacted their own fair chance ordinances, creating a patchwork of requirements that may vary by location. This makes compliance particularly challenging for employers with operations across multiple jurisdictions within the state.

State Background Check Laws

Primary Statutes

California’s background check legal framework is built on several key statutes. The California Fair Employment and Housing Act (FEHA) provides broad protections against employment discrimination and includes provisions related to criminal history inquiries. The Investigative Consumer Reporting Agencies Act (ICRAA) governs how background check companies and employers must handle consumer reports and personal information.

Assembly Bill 1008, California’s primary fair chance hiring law, establishes comprehensive requirements for how employers can inquire about and consider criminal history information. The Unruh Civil Rights Act also provides relevant protections, particularly in housing contexts where background checks are commonly used.

Additionally, California Civil Code sections governing consumer privacy and data protection create obligations for how background check information must be handled, stored, and shared. These laws work together to create a comprehensive regulatory framework that governs most aspects of background check processes in the state.

Regulatory Agencies

The California Civil Rights Department (CRD), formerly known as the Department of Fair Employment and Housing, serves as the primary enforcement agency for employment-related background check violations. The CRD has authority to investigate complaints, conduct audits, and impose penalties for violations of fair chance hiring laws and other employment discrimination statutes.

The California Attorney General’s Office also plays a significant role in background check law enforcement, particularly regarding consumer protection and data privacy issues. The AG’s office can pursue enforcement actions against background check companies that violate state consumer protection laws or fail to comply with data security requirements.

Various industry-specific regulatory bodies also oversee background check compliance within their respective sectors. For example, the California Department of Public Health regulates healthcare worker background checks, while the California Department of Social Services oversees requirements for childcare and eldercare providers.

Enforcement

California takes background check law enforcement seriously, with multiple avenues for both regulatory and private enforcement. The state allows individuals to file complaints with regulatory agencies and also provides private rights of action for violations of background check laws.

Penalties for violations can be substantial, including statutory damages ranging from hundreds to thousands of dollars per violation, plus attorney’s fees and costs. In cases involving systemic violations or discrimination, penalties can reach into the millions of dollars. Recent enforcement actions have targeted employers who failed to follow proper adverse action procedures, conducted criminal history inquiries too early in the hiring process, or failed to provide required notices to applicants.

Ban the Box / Fair Chance Laws

State Requirements

California’s fair chance hiring law, codified primarily in Government Code Section 12952, applies to employers with five or more employees. The law prohibits employers from inquiring about an applicant’s criminal history before making a conditional offer of employment. This includes questions on job applications, during interviews, and in other pre-offer screening processes.

Once a conditional offer is made, employers may conduct criminal background checks, but they must follow specific procedures if they intend to withdraw the offer based on criminal history information. Employers must provide applicants with a copy of the background check report and give them at least five business days to respond with additional information or corrections.

The law also requires employers to conduct an individualized assessment when considering criminal history information. This assessment must consider factors such as the nature and gravity of the offense, the time that has passed since the conviction, and the nature of the job being sought. Employers must document this analysis and be able to demonstrate that any employment decision based on criminal history is job-related and consistent with business necessity.

Local Ordinances

Many California cities and counties have enacted their own fair chance ordinances that may be more restrictive than state law. Los Angeles, San Francisco, Oakland, Berkeley, and numerous other jurisdictions have local ban the box laws that may apply to smaller employers, include additional procedural requirements, or provide enhanced protections for applicants.

For example, San Francisco’s Fair Chance Ordinance applies to employers with five or more employees but includes additional requirements for providing written explanations when adverse employment actions are taken. Los Angeles has similar requirements and also extends protections to housing and other contexts beyond employment.

These local ordinances can create compliance challenges for employers operating in multiple jurisdictions, as they must ensure compliance with the most restrictive applicable law. Some local ordinances also provide for additional penalties or enforcement mechanisms beyond those available under state law.

Timing Restrictions

California’s timing restrictions on criminal history inquiries are among the most stringent in the nation. Employers cannot ask about criminal history at any point before making a conditional offer of employment. This prohibition extends beyond formal job applications to include verbal inquiries during interviews, background questionnaires, and any other pre-offer screening.

The law does provide limited exceptions for positions where criminal history inquiries are required by federal or state law, or where the employer is legally prohibited from hiring individuals with certain criminal convictions. However, these exceptions are narrowly construed and must be clearly job-related.

After making a conditional offer, employers have broader authority to conduct criminal background checks, but they must still follow the individualized assessment and adverse action procedures outlined in the law. The timing of these post-offer procedures is also regulated, with specific notice periods and opportunities for applicant response.

Criminal Record Rules

Lookback Periods

California law does not establish universal lookback periods for all types of background checks, but it does impose specific limitations in certain contexts. For most employment purposes, employers can generally consider criminal convictions without arbitrary time limits, though the individualized assessment requirement means that older convictions may be less relevant to employment decisions.

However, specific industries may have different rules. For example, healthcare positions may have lookback periods of seven years for certain types of background checks, while Financial services positions may consider criminal history for longer periods due to federal requirements.

California does prohibit employers from considering arrests that did not result in convictions, with limited exceptions for pending charges and certain legally mandated disclosures. This restriction applies regardless of how recent the arrest may have been.

Reportable Offenses

California law distinguishes between different types of criminal history information and how they can be used in background checks. Felony and misdemeanor convictions are generally reportable, but employers must still conduct individualized assessments to determine relevance to the specific position.

Arrests without convictions cannot be considered in most employment contexts, though there are exceptions for certain regulated industries and positions of trust. Sealed, expunged, or dismissed cases generally cannot be reported or considered, though some exceptions exist for specific types of positions.

Juvenile records are generally protected from disclosure and cannot be used in employment decisions, with very limited exceptions for positions working with minors or in law enforcement contexts. Orders of protection, restraining orders, and similar civil proceedings may be reportable depending on the specific circumstances and job requirements.

Expungement Rules

California provides relatively robust expungement procedures that can limit what information appears on background checks. Under Penal Code Section 1203.4 and related statutes, individuals can petition to have many types of convictions set aside and dismissed.

Once a conviction is expunged under California law, employers generally cannot consider that information in employment decisions. Background check companies are also prohibited from reporting expunged convictions in most circumstances. However, certain regulated industries and government positions may still have access to expunged records.

Recent changes to California expungement law have expanded eligibility and streamlined procedures, making it easier for individuals to clear their records. The state has also implemented automatic record clearance procedures for certain types of convictions and arrests.

Employer Obligations

Consent Requirements

California’s Investigative Consumer Reporting Agencies Act (ICRAA) requires employers to obtain written consent before conducting background checks. This consent must be clear and conspicuous, and it must be obtained separately from other employment documents. The consent form must also include specific disclosures about the applicant’s rights under California law.

Unlike federal FCRA requirements, California law requires that the disclosure and consent be provided in the same document, and the disclosure must include information about the applicant’s right to receive a copy of any report and to dispute inaccurate information. The consent must also be signed and dated by the applicant.

For investigative consumer reports that include interviews with references or other personal sources, additional consent and disclosure requirements apply. These reports require more detailed disclosures and may require separate consent procedures.

Adverse Action Process

When an employer intends to take adverse action based on background check information, California law requires a specific multi-step process. First, the employer must provide the applicant with a copy of the background check report and a written notice of the intent to take adverse action.

The applicant must then be given at least five business days to respond with additional information, corrections, or evidence of rehabilitation. During this period, the employer cannot finalize the adverse action decision. After considering any response from the applicant, the employer must conduct an individualized assessment and document their decision-making process.

If the employer ultimately decides to take adverse action, they must provide final written notice that includes specific information about the decision, the applicant’s rights to dispute the background check information, and contact information for the background check company. This process applies to both employment and housing contexts in many California jurisdictions.

Record Keeping

California employers must maintain detailed records related to their background check processes. This includes documentation of individualized assessments, copies of all notices provided to applicants, records of applicant responses, and evidence supporting employment decisions based on criminal history.

These records must typically be maintained for at least two years and may be subject to review during regulatory investigations or legal proceedings. Employers should also maintain records demonstrating compliance with timing requirements and proper consent procedures.

The recordkeeping requirements extend to policies and procedures related to background checks. Employers should maintain current written policies that comply with California law and document any training provided to personnel involved in the background check process.

Industry-Specific Rules

Healthcare

California healthcare employers face extensive background check requirements under various state laws and regulations. Healthcare workers may be subject to federal and state criminal background checks, exclusion list screening, and ongoing monitoring requirements.

The California Department of Public Health and other regulatory bodies oversee background check requirements for different types of healthcare positions. These requirements often include fingerprint-based criminal history checks, verification of Professional Licenses and certifications, and screening against various exclusion databases.

Healthcare background checks may also include specific lookback periods, mandatory reporting requirements for certain types of convictions, and ongoing monitoring obligations. Employers in this sector must navigate both general employment laws and industry-specific requirements.

Education

Educational institutions in California must comply with extensive background check requirements for employees who work with minors. These requirements typically include Department of Justice and FBI fingerprint clearances, as well as screening against sex offender registries.

The California Commission on Teacher Credentialing oversees background check requirements for certificated personnel, while individual school districts and educational institutions may have additional requirements for classified employees and volunteers.

Educational background checks often have different standards for what types of criminal history may disqualify an individual from employment, and these standards may be more restrictive than general employment law requirements.

Financial Services

Financial services employers in California must comply with federal banking laws and regulations that may require or restrict certain types of background checks. The Federal Deposit Insurance Corporation (FDIC) and other federal regulators have specific requirements for hiring individuals with criminal convictions in banking and financial services.

These federal requirements may override some California fair chance hiring protections, though employers must still comply with state law to the extent possible. Financial services background checks may also include credit history, regulatory sanctions, and other specialized screening requirements.

Other Regulated Industries

Many other California industries have specific background check requirements, including transportation, gaming, cannabis, security services, and childcare. Each industry may have different regulatory agencies, screening requirements, and standards for evaluating criminal history.

Employers in regulated industries should work with qualified legal counsel and background check providers to ensure compliance with both general California law and industry-specific requirements. These requirements can change frequently and may involve complex interactions between state and federal law.

Best Practices for Compliance

State-Specific Recommendations

To ensure compliance with California background check laws, employers should develop comprehensive written policies that address all applicable requirements. These policies should be regularly updated to reflect changes in state and local law, and all personnel involved in hiring should receive regular training on compliance requirements.

Employers should implement systems to ensure that criminal history inquiries are not conducted until after conditional offers are made, and they should develop standardized procedures for conducting individualized assessments when criminal history information is identified.

Working with experienced background check providers who understand California law is essential. These providers can help ensure that background check reports comply with state requirements and that proper procedures are followed throughout the screening process.

Common Pitfalls

One of the most common compliance mistakes is asking about criminal history too early in the hiring process. This can occur through standard job applications that include criminal history questions, verbal inquiries during interviews, or informal screening processes.

Another frequent issue is failing to conduct proper individualized assessments when criminal history is identified. Employers often rely on blanket policies or fail to document their decision-making process adequately, which can lead to discrimination claims and regulatory violations.

Inadequate record keeping is also a common problem, particularly regarding documentation of individualized assessments and adverse action procedures. Employers may also fail to stay current with local ordinances that may be more restrictive than state law.

How to Stay Updated

California background check laws continue to evolve, with frequent changes at both state and local levels. Employers should establish procedures for monitoring legal developments and updating their policies accordingly.

Subscribing to legal updates from employment law firms, industry associations, and regulatory agencies can help employers stay informed about changes in the law. Regular consultation with qualified employment attorneys is also advisable, particularly for employers with complex hiring needs or operations in multiple jurisdictions.

Training programs for HR personnel and hiring managers should be updated regularly to reflect current legal requirements. Many employers also benefit from periodic compliance audits to identify and address potential issues before they result in violations.

Frequently Asked Questions

Can employers in California ask about criminal history during job interviews?

No, California employers with five or more employees cannot ask about criminal history at any point before making a conditional offer of employment. This prohibition includes verbal questions during interviews, written questions on applications, and any other pre-offer inquiries about criminal background.

How long must employers wait after providing adverse action notice?

California law requires employers to wait at least five business days after providing preliminary adverse action notice before taking final adverse action. During this period, applicants have the opportunity to provide additional information, corrections, or evidence of rehabilitation that the employer must consider.

Do California background check laws apply to independent contractors?

The application of California background check laws to independent contractors depends on the specific law and circumstances involved. While fair chance hiring laws typically apply only to employees, other consumer protection and privacy laws may apply to contractor relationships. Employers should consult with legal counsel when conducting background checks on independent contractors.

What criminal history information can be considered in California?

California employers can generally consider criminal convictions that are relevant to the specific position, but they must conduct an individualized assessment and cannot consider arrests without convictions, expunged records, or juvenile records in most circumstances. The relevance determination must consider factors such as the nature of the offense, time elapsed, and job duties.

Are there exceptions to California’s ban the box law?

Yes, there are limited exceptions for positions where criminal background checks are required by federal or state law, or where employers are legally prohibited from hiring individuals with certain convictions. However, these exceptions are narrowly interpreted and must be clearly job-related and legally mandated.

Conclusion

California’s comprehensive background check laws create significant obligations for employers, landlords, and others who conduct background screening. The state’s fair chance hiring laws, criminal record protections, and procedural requirements go well beyond federal minimums and continue to evolve at both state and local levels.

Successful compliance requires understanding not only state law but also local ordinances that may apply to specific jurisdictions within California. Employers must implement robust policies and procedures, provide appropriate training to personnel, and maintain detailed documentation of their background check processes.

The complexity of California background check law makes it essential to work with experienced professionals who understand the nuances of state and local requirements. This includes both qualified legal counsel for policy development and compliance guidance, and reputable background check providers who can ensure that screening processes meet all applicable legal standards.

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