Generally, California employers must comply with the following rules governing whether they may obtain criminal history information when conducting background checks for applicants or employees:

  1. Employers cannot consider prior arrests not leading to conviction in employment decisions.
  2. Employers cannot seek information or rely on information pertaining to referral to diversion programs.
  3. California prohibits employers from relying on information about expunged or sealed records.
  4. Employers cannot collect or rely on information about misdemeanor convictions for marijuana possession more than two years old.
  5. Employers may consider arrests for which the applicant is waiting for trail, and convictions.

In regards to item number 5, employers must be aware that California’s Fair Employment & Housing Council has proposed regulations that could make employer’s use of any criminal history in the employment context if the use of the information would “have an adverse impact on individuals on a basis protected by the Act, including, but not limited to, gender, race, and national origin.”  Employers would be prohibited from using criminal information in employment decisions if it would create an adverse impact on individuals and the employer cannot demonstrate that the criminal history is job-related with business necessity or if the employee can show that there is a less discriminatory means of achieving the business necessity.  The Council is considering written comments about this proposed regulation from any interested party until April 7, 2016.  Comments can be submitted by e-mail to

Employers must also be aware of their local ordinances, such as those in San Francisco, that create additional prohibitions, Federal requirements and the changing legal landscape in this area.