EEOC Drops Criminal Records Hiring Guidance | California Fair Chance Act Still Applies
- Tom Feher, Esq.
On October 29, 2026, the U.S. Equal Employment Opportunity Commission announced that it had voted to rescind its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions, effective immediately. The vote took place October 28 and was 2 to 1, according to The National Law Review. EEOC Chair Andrea Lucas said the move “does not give employers license to engage in unlawful discrimination,” and the agency said it would keep enforcing Title VII against race and national origin discrimination, including hiring requirements that act as a proxy for it. The release added that employers are not required to abandon lawful practices they adopted under the 2012 guidance.
For California workers the practical question is simpler: did anything change about what an employer here can ask, and when? The answer is no. The state’s Fair Chance Act is a statute, not an agency guidance document, and it is unaffected by the EEOC vote. Here is what it still requires.
Tom’s Opinion
“Every few years a federal agency changes a guidance document and California workers hear that their protections are gone. They are not. The EEOC’s 2012 guidance was never the source of a California applicant’s rights; it was one agency’s reading of federal law. The Fair Chance Act is a statute the Legislature passed, and only the Legislature can change it. What I see go wrong is quieter: an employer runs the background check before the offer, or pulls an offer with a form letter and no five-day window. Those are violations today, no matter what Washington does.”
Thomas Feher, Esq. · Founding Attorney, Feher Law APC · 50+ jury trials to verdict · $170M+ recovered
What California Law Says
The Fair Chance Act: no conviction questions before a conditional offer
Government Code section 12952, in force since January 1, 2018 according to the Civil Rights Department (CRD), makes it an unlawful employment practice for an employer with five or more employees to ask about conviction history on an application, or to inquire into or consider it at all, until after a conditional offer of employment has been made. Even after the offer, the employer may not consider arrests that did not lead to conviction, participation in a diversion program, or convictions that were sealed, dismissed, expunged, or pardoned.
What has to happen before an offer is pulled
If an employer intends to deny the job because of a conviction, section 12952(c) requires an individualized assessment of whether the conviction has a direct and adverse relationship with the specific duties of the job, weighing the nature and gravity of the offense, the time that has passed, and the nature of the job. The employer must then give written notice of the preliminary decision that identifies the disqualifying conviction, includes a copy of any conviction history report, and explains the right to respond. The applicant gets at least five business days to respond with evidence of rehabilitation, mitigating circumstances, or inaccuracy, and five more business days if they notify the employer in writing that they dispute the report’s accuracy. Any final denial must be in writing and must mention the right to file a complaint with the CRD.
Arrests and sealed records are off limits for every employer
Labor Code section 432.7 applies to any employer, public or private, with no size threshold. It bars asking an applicant, in writing or verbally, about an arrest or detention that did not result in conviction, a pretrial or posttrial diversion program, or a conviction that was judicially dismissed or sealed, and bars using those records as a factor in hiring, promotion, or termination. Juvenile court records are protected the same way. The one carve-out is an arrest for which the applicant is out on bail or released on their own recognizance pending trial.
Local ordinances add their own layers
Los Angeles County’s Fair Chance Ordinance for Employers, which the County’s Department of Consumer and Business Affairs says took effect September 3, 2024, applies to employers with five or more employees whose workers perform at least two hours of work a week in unincorporated county areas and adds its own notice forms and assessment requirements. Those rules sit on top of state law, and the EEOC’s action does not touch them.
Federal law still applies too
Rescinding a guidance document does not amend Title VII of the Civil Rights Act. The EEOC’s own release says it will continue to enforce the statute against race and national origin discrimination, including employment requirements that serve as a proxy for intentional discrimination. The 2012 guidance had told employers to screen using three factors drawn from federal case law: the nature and gravity of the offense, the time elapsed, and the nature of the job. California wrote those same three factors into section 12952, which is why a California employer that followed the 2012 guidance was usually already most of the way to state compliance.
Deadlines
A Fair Chance Act violation is handled like other discrimination claims under the Fair Employment and Housing Act. Under Government Code section 12960(e)(5) you have three years from the unlawful practice to file a complaint with the CRD, and under section 12965 one year from the date of a right-to-sue notice to file in court. See our guide to the FEHA statute of limitations for how the two clocks interact.
If This Happened to You or a Loved One
If an employer asked about your record before making an offer, or pulled an offer without the written notice and response window described above, you may have a claim regardless of what the EEOC does with its guidance. Here is what to do:
- Keep the paperwork. Save the application, any screenshot of a criminal history question, the offer letter, the background check report, and every email or letter about the decision. The order of events is the case.
- Write down the timeline. Note the date you applied, the date of any interview where your record came up, the date of the offer, and the date it was withdrawn.
- Respond in writing within five business days if you received a preliminary notice. Send evidence of rehabilitation, time elapsed, or errors in the report, and keep a copy. Silence is treated as no response.
- Check the report for errors. Background check vendors routinely mix up names, report dismissed cases as convictions, or include sealed records. Disputing accuracy in writing adds five more business days under section 12952.
- Talk to an employment lawyer before the three-year CRD deadline. Our Los Angeles workplace discrimination lawyers handle Fair Chance Act and hiring discrimination claims; see our earlier coverage of the FedEx settlement the CRD announced over an old conviction. Our discrimination settlement guide explains what these claims are typically worth. Call (310) 340-1112 for a free consultation. You pay nothing unless we win.
Frequently Asked Questions
No. The EEOC rescinded its own 2012 guidance document, which only explained how the agency reads federal Title VII. California's Fair Chance Act, Government Code section 12952, is a state statute and still bars employers with five or more employees from asking about conviction history before a conditional job offer.
Not if the employer has five or more employees. Section 12952 prohibits any question seeking conviction history on an application before a conditional offer, and prohibits inquiring into or considering it until after the offer. Labor Code section 432.7 separately bars every employer from asking about arrests that did not end in conviction.
The employer must do an individualized assessment tied to the specific job, send a written preliminary notice with a copy of the report, and give you at least five business days to respond before any final decision. A final denial must be in writing and tell you that you can file a complaint with the Civil Rights Department (CRD).
Generally no. Labor Code section 432.7 bars any employer from asking about or using an arrest or detention that did not result in conviction, a diversion program, or a dismissed or sealed conviction. The main exception is an arrest for which you are out on bail or released on your own recognizance while the case is pending.
Three years from the violation to file with the Civil Rights Department (CRD) under Government Code section 12960(e)(5), then one year from the right-to-sue notice to file in court under section 12965. Local ordinances such as Los Angeles County's may have their own complaint processes, so do not wait.
No. Section 12952(d) excludes positions where a state or local agency is required by law to run a conviction history check, jobs with criminal justice agencies, farm labor contractors, and positions where state, federal, or local law requires a background check or restricts employment based on criminal history. Employers with fewer than five employees are also outside the statute.
Last reviewed by Thomas Feher, Esq., November 2026
Attorney Advertising. Prior results do not guarantee a similar outcome. This article is for general information and is not legal advice for any specific matter.
