A criminal record can affect employment opportunities, but California law gives job applicants important protections. Most employers with five or more employees generally cannot ask about conviction history until after making a conditional job offer, and a criminal record does not automatically allow an employer to reject an applicant.
A past arrest or conviction can create concerns when applying for a new job, particularly when an employer conducts a background check.
However, California law has changed significantly in recent years.
The state’s Fair Chance Act limits when many employers may ask about criminal history and requires employers to follow specific procedures before denying employment because of a conviction.
In addition, certain dismissed, sealed, or otherwise cleared records generally cannot be considered by covered employers.
Can California Employers Ask About Your Criminal Record?
In many cases, not until later in the hiring process.
California’s Fair Chance Act generally applies to employers with five or more employees.
Covered employers generally cannot:
- Ask about conviction history on an initial job application
- Ask an applicant about criminal history before making a conditional offer of employment
- Consider criminal-history information before making a conditional job offer
This is commonly referred to as California’s “Ban the Box” law.
The purpose is to allow applicants to be evaluated initially on their qualifications rather than being screened out immediately because of a criminal record.
Can an Employer Run a Background Check After a Job Offer?
Yes.
After making a conditional job offer, an employer may generally conduct a lawful criminal background check and consider certain conviction history.
However, the employer cannot automatically reject an applicant simply because a conviction appears on the report.
For employers covered by the Fair Chance Act, the employer generally must evaluate whether the conviction has a direct and adverse relationship to the specific duties of the job.
What Must an Employer Consider Before Denying Employment?
California requires an individualized assessment.
Among the factors an employer generally must consider are:
- The nature and seriousness of the conduct or conviction
- How much time has passed since the conduct or completion of the sentence
- The nature and duties of the job being sought
The question is not simply whether the applicant has a criminal record.
The employer must consider whether the particular conviction has a meaningful relationship to the particular job.
Can an Employer Withdraw a Job Offer Because of a Conviction?
Potentially, but covered employers must follow a specific process.
If an employer preliminarily decides that a conviction disqualifies an applicant, the employer generally must provide written notice.
That notice must identify the conviction or convictions that led to the decision and give the applicant an opportunity to respond.
The applicant may be able to provide:
- Evidence that the background report is inaccurate
- Evidence of rehabilitation
- Information explaining the circumstances surrounding the conviction
- Evidence showing why the conviction is not relevant to the position
The employer must consider the applicant’s response before making a final decision.
If the employer ultimately withdraws the offer, additional written notice requirements generally apply.
Can Employers Consider Arrests That Did Not Result in Conviction?
California law generally restricts employers from asking about or considering arrests that did not result in a conviction, subject to certain statutory exceptions.
Employers also generally may not consider participation in qualifying pretrial or posttrial diversion programs.
This means an arrest alone should not automatically be treated the same way as a criminal conviction in the hiring process.
Can Employers Consider an Expunged or Dismissed Conviction?
Generally, covered California employers may not ask about or consider convictions that have been:
- Judicially dismissed
- Expunged
- Sealed
- Statutorily eradicated
California’s Fair Chance Act also protects certain records involving successful completion of diversion programs.
This is one reason post-conviction relief can be valuable when seeking employment.
Does a California Expungement Erase the Criminal Record?
No.
The word “expungement” is commonly used to describe relief under Penal Code section 1203.4, but a California dismissal does not literally erase or destroy the conviction record.
When relief is granted, the conviction is set aside and the case is dismissed.
However, the court record and criminal-history record generally continue to exist and can show that the conviction was later dismissed.
A Penal Code section 1203.4 dismissal should therefore not be described as making the conviction disappear from every government or court record.
For more information, visit our Fresno Expungement & Post-Conviction Relief page.
Can You Answer “No” When Asked About a Dismissed Conviction?
For many private-sector employment applications in California, a person whose qualifying conviction has been dismissed may generally answer “no” when asked about convictions that employers are legally prohibited from considering.
However, there are important exceptions.
A dismissed conviction may still have to be disclosed in situations involving:
- Government employment
- Applications for public office
- Certain government-issued licenses, permits, or certificates
- Positions requiring certain security clearances
- Other situations in which disclosure is specifically required by law
Anyone completing an application that specifically requires disclosure should carefully read the question and applicable instructions rather than assuming that a dismissal permits a “no” answer in every situation.
Does Expungement Seal the Court File?
Not ordinarily.
A dismissal under Penal Code section 1203.4 is different from record sealing.
The court file generally remains available unless some separate sealing law applies.
The record may show both the original conviction and the later dismissal.
California also has separate laws that may automatically seal or provide relief for certain arrest and conviction records.
Whether a particular record has been dismissed, sealed, or otherwise cleared depends on the specific case and the statute involved.
Does Expungement Restore Every Right Lost Because of a Conviction?
No.
A Penal Code section 1203.4 dismissal provides important relief, but it does not eliminate every consequence of a conviction.
For example, a dismissal does not automatically:
- Restore firearm rights
- Prevent a conviction from being considered in certain future criminal proceedings
- Eliminate every licensing consequence
- Eliminate immigration consequences
- Terminate sex-offender registration requirements
The effect of post-conviction relief depends on the type of conviction and the particular consequence involved.
Does the Fair Chance Act Apply to Every Job?
No.
California’s Fair Chance Act generally applies to employers with five or more employees, but there are exceptions.
For example, different rules can apply when:
- The employer has fewer than five employees
- A particular position is subject to a legally required criminal background check
- State or federal law restricts employment based on particular convictions
- The job involves certain industries or professional licensing requirements
Examples can include some positions in law enforcement, healthcare, banking, education, or other regulated fields.
What If a Background Check Contains Incorrect Information?
Background reports are not always accurate.
An applicant may discover that a report contains:
- A conviction belonging to someone else
- An incorrect disposition
- A case that was dismissed but is reported incorrectly
- An arrest that never resulted in charges
- Outdated or incomplete court information
If an employer relies on criminal-history information when considering whether to withdraw a conditional offer, California law generally gives the applicant an opportunity to challenge the accuracy of the information.
Someone concerned about what appears on their record may also consider obtaining a copy of their California criminal-history record and reviewing relevant court files.
Can Cleaning Your Criminal Record Improve Employment Opportunities?
Potentially.
Depending on the case, California law may provide several forms of relief, including:
- Dismissal under Penal Code section 1203.4 or related statutes
- Reduction of certain felonies to misdemeanors
- Proposition 47 relief for qualifying older convictions
- Record sealing in qualifying cases
- A Certificate of Rehabilitation in appropriate cases
These remedies do not all have the same legal effect.
For example, a misdemeanor reduction is different from a dismissal, and a dismissal is different from sealing a record.
For qualifying older drug and theft convictions, see our guide to California Proposition 47 felony reduction.
What If an Employer Improperly Uses Your Criminal History?
California’s Civil Rights Department enforces the Fair Chance Act.
An applicant who believes a covered employer improperly asked about criminal history, failed to conduct an individualized assessment, or unlawfully withdrew a conditional offer may have rights under California law.
Employment-law questions and claims against an employer are separate from criminal record-clearing representation, so someone facing an employment dispute may also need advice from an attorney who handles California employment law.
Talk to a Fresno Attorney About Clearing Your Criminal Record
A past conviction can continue affecting employment long after a criminal sentence has been completed, but California law provides both employment protections and several forms of post-conviction relief.
Determining which record-clearing option may apply depends on the conviction, sentence, probation history, and other circumstances.
Gregory W. Fox has more than 20 years of experience handling California criminal cases and helping clients understand post-conviction relief.
If an old conviction is affecting your employment opportunities, call the Law Office of Gregory W. Fox at (559) 222-5800 to request a confidential consultation.
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