Evaluating candidates with known criminal records in compliance with the California Fair Chance Act¹ (CFCA) poses a challenge for covered employers because the CFCA limits the discretion employers have to rely on such records when making hiring decisions.² To make matters worse, the state agency that oversees and enforces the CFCA, the California Civil Rights Department (CRD³), has been requiring strict compliance with the CFCA’s requirements.⁴ The CRD also interprets the CFCA’s requirements liberally in favor of applicants and, arguably, beyond what the statute requires. With the increasing number of administrative charges and lawsuits alleging CFCA violations, employers can proactively fortify their CFCA compliance.

The CFCA regulates both the pre- and post-offer stages of the hiring process. The CFCA makes it unlawful for covered employers to:

• Include on any job application any question about an applicant’s conviction history;
• Inquire into or consider conviction history before the applicant receives a conditional job offer; and
• Consider an arrest that did not result in a conviction (with narrow exceptions), a referral to or participation in a pretrial or posttrial diversion program, and any convictions that have been sealed, dismissed, expunged or statutorily eradicated.

Employers may consider an applicant’s conviction history after extending a conditional job offer but must follow the process steps outlined by the CFCA.

First, the employer must conduct an...

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