When Employers Break the Rules: How to Spot a Fair Chance Act Violation

By Orange County Employment Law Firm, PC — Tim Cojocnean, Esq.

You did everything right. You applied, you interviewed, you sold yourself — and then the employer ran a background check and went silent. Or worse, they told you upfront they don’t hire people with criminal records. No process. No explanation. No shot.

California’s Fair Chance Act (AB 1008) was built precisely for moments like that. But the law only helps you if you know what a violation actually looks like — and most people don’t.

Here’s what employers are legally required to do, and what it means when they don’t.

The Law in Plain English

The Fair Chance Act prohibits most California employers with five or more employees from asking about your criminal history — arrests, convictions, or time served — before making you a conditional job offer. You get evaluated as a person first. Your record comes second, if it comes at all.

But the law doesn’t stop there. Even after a conditional offer, if an employer wants to pull the offer based on your background, they have to follow a specific multi-step process. Cut a corner anywhere, and they’ve broken the law.

Violation #1: They Asked About Your Record Too Early

The most common Fair Chance Act violation is also the most obvious: the employer asks about your criminal history before offering you the job.

This includes:

• A checkbox on the application asking about convictions
• An interview question like “Have you ever been arrested or convicted of a crime?”
• A background check authorization form sent before a conditional offer

It doesn’t matter if the question felt casual or conversational. Under California law, none of those questions are legal until after you have a conditional offer in hand.

What this looks like: You’re filling out an online application and there’s a dropdown asking if you’ve been convicted of a felony in the last seven years. That dropdown shouldn’t exist.

Violation #2: They Pulled the Offer Without an Individualized Assessment

This is the violation that trips up employers who think they’re doing everything right.

If a background check comes back and the employer wants to rescind your offer, they can’t just say “we found something and we’re passing.” California law requires a written, individualized assessment — a real analysis of whether your specific conviction has a direct and adverse relationship to the specific duties of this job.

The assessment must consider:

• The nature and gravity of the offense
• How much time has passed since the conviction or release
• The nature of the job you applied for

A blanket policy — “we don’t hire people with felonies” or “any conviction disqualifies you” — is not an individualized assessment. It’s an illegal shortcut.

What this looks like: You applied for a warehouse job. A decade-old conviction for something unrelated to the position comes back on the report. The employer says “company policy” and rescinds without ever asking you a single question. That’s a Fair Chance Act violation.

Violation #3: They Didn’t Give You a Chance to Respond

Even when an employer conducts a proper assessment and decides to pull the offer, the law gives you the right to fight back — before the decision is final.

The employer must:

1. Send you a written preliminary notice identifying the specific conviction(s) at issue
2. Attach a copy of the background check report
3. Give you at least five business days to respond

That response period is your opportunity to submit evidence of rehabilitation, show that the report contains errors, or provide context the employer didn’t have. An employer who skips this step — or gives you 24 hours when the law requires five business days — has violated the Fair Chance Act.

What this looks like: The employer calls you on a Tuesday and says “we decided to go another direction” without ever sending you written notice or the background report. You never got the chance to respond. That’s a violation.

Violation #4: They Refused to Reconsider After You Provided Evidence

Submitting a response isn’t just a formality. The employer is legally required to actually consider what you send before issuing a final decision.

If you provide evidence of rehabilitation — certificates, references, documentation showing growth since the conviction — and the employer rubber-stamps their original decision anyway without engaging with the evidence, that’s a problem.

The final written notice (if the employer still rescinds) must also inform you of any applicable grievance procedures. Skipping the notice or the required language is yet another violation.

If You Work in Los Angeles, Your Rights Are Even Stronger

Employers within the City of Los Angeles are subject to the Fair Chance Initiative for Hiring, a local ordinance that goes beyond state law. It covers contractors and freelancers (not just traditional employees), requires longer waiting periods before rescinding offers, and mandates more detailed written notices.

If you applied for a job within LA city limits, you may have additional claims beyond the state Fair Chance Act.

What You Can Recover

• Lost wages and benefits — the compensation you would have earned in the job they denied you
• Emotional distress damages — for the anxiety, humiliation, and stress caused by the violation
• FEHA penalties — California’s Fair Employment and Housing Act provides statutory remedies
• Attorney’s fees — paid by the employer, not you

And because we work on contingency, you pay nothing unless we win.

The Bottom Line

A past conviction should not automatically close doors on your future. California law gives you real rights — but only if you know when they’ve been violated and take action quickly. Employment claims have strict deadlines, and evidence disappears fast.

If an employer asked about your record too early, pulled a job offer without following the proper process, or denied you a fair chance to respond, contact Orange County Employment Law Firm. We represent employees throughout Orange County, and your first consultation is free.

Call us at (949) 506-6825 or reach out online. If you don’t win, you don’t pay anything.