EEOC Rescinds Criminal History Guidance: What California Employers Need to Know

EEOC Pulls Back on Criminal History Rules, but California’s “Fair Chance” Law Stands

On October 29, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) announced the immediate rescission of its 2012 guidance on how criminal history can be used in hiring decisions. The move, reported by CDF Labor Law, signals a shift in federal enforcement policy, effectively removing a document that has shaped corporate hiring practices for over a decade. But for businesses in the Golden State, the practical reality remains unchanged: California’s robust “ban the box” laws are still firmly in place, and employers who ignore them do so at their own peril.

The change is more than just a bureaucratic shuffle. For 14 years, the 2012 guidance provided a clear, if sometimes complex, framework for employers, urging them to move beyond blanket criminal record rejections. It encouraged a more nuanced approach, considering the nature of the offense, how much time had passed, and the specific requirements of the job. Now, that federal safety net is gone. The EEOC, under new leadership, has signaled a retreat from the “disparate impact” theory that underpinned the guidance—the idea that even neutral-seeming policies could disproportionately harm minority groups and therefore violate the Civil Rights Act. As Seyfarth noted, this represents a “notable shift in federal enforcement policy,” but one with a crucial asterisk.

“Rescinding this guidance does not give employers license to engage in unlawful discrimination — Title VII continues to prohibit discrimination based on race or national origin, including employment requirements that are proxies for intentional discrimination,” EEOC Chair Andrea Lucas said.

What the EEOC is saying, in no uncertain terms, is that you can’t just start discriminating. The core federal law, Title VII, remains unaltered. An employer can’t refuse to hire someone because of their race or national origin, and a policy that screens out applicants based on a criminal history can still be challenged in court if it has a discriminatory effect. The EEOC isn’t going away; it’s just changing its enforcement focus. As Husch Blackwell put it, employers should distinguish “the withdrawal of agency guidance from the obligations that continue to govern their screening decisions.”

A Tale of Two Governments: Federal Retreat, State Solidarity

To understand why California employers shouldn’t panic, you have to look at the calendar. This isn’t the first time the rules have shifted, and it won’t be the last. In fact, the state has been busy tightening its own grip on the issue. Just this past August 10, 2026, San Francisco amended its Fair Chance Ordinance, making it even harder for employers to consider certain out-of-state criminal records. This is a key point: the regulatory landscape is not static. While the federal government is pulling back, states and cities are often pushing forward with their own “fair chance” legislation.

The California Fair Chance Act, a law that has been on the books for years, remains the bedrock for employers with five or more employees. It mandates a familiar, multi-step process that hasn’t been affected by the EEOC’s move. An employer can’t even ask about an applicant’s criminal history until after a conditional offer of employment has been made. Then, if a record comes up, the employer must conduct a thorough “individualized assessment.” This isn’t a rubber stamp; it requires a careful look at the nature of the crime, how long ago it happened, and whether it has any real bearing on the job duties. The process also gives the applicant a chance to respond, with a minimum of five business days to dispute the information or present evidence of rehabilitation.

Understanding the EEOC's New Criminal Records Guidance

Think of it this way: the federal government is taking its foot off the accelerator, but California has its own foot firmly on the brake. The rules for a hiring manager in Los Angeles or San Diego are dictated by Sacramento, not Washington D.C. The EEOC’s rescission doesn’t invalidate any of these state-level requirements. In fact, the EEOC itself was careful to state that employers don’t need to scrap the policies they built in response to the 2012 guidance. For many large, multi-state employers, those policies were designed from the start to comply with a patchwork of state and local laws, meaning they can continue business as usual.

The Human Cost of a Criminal Record—and the Cost of Ignoring It

Behind all the legalese is a simple, powerful truth: a criminal record can be a life sentence to unemployment. For the millions of Americans with a past mistake, getting a fair shot at a job is the first step toward rebuilding their lives. Blanket disqualification policies can lock out qualified candidates, disproportionately affecting communities of color and perpetuating cycles of poverty and recidivism. The 2012 guidance was an attempt to address this, pushing employers to think critically about whether a past conviction truly makes someone unfit for a specific role.

On the other side of the coin, employers have legitimate concerns. They are responsible for the safety and security of their workforce, customers, and assets. A background check is a tool for managing risk. A poorly designed process, however, can create more problems than it solves. As Husch Blackwell wisely points out, a background check should “solve a problem, not just produce a report.” A conviction might be accurately reported, but that doesn’t automatically mean it disqualifies someone from being a great accountant or a software developer. The key is always the relationship between the past offense and the future job.

This is where the “devil’s advocate” argument comes in. Some might argue that the EEOC’s reversal is a victory for common sense, freeing businesses from overly restrictive federal guidelines that made hiring more complicated and potentially exposed them to lawsuits from applicants with criminal pasts. They might say that employers should have the freedom to make their own judgments about who is a good fit for their company culture. While there’s merit in that perspective, it ignores the fact that this freedom has always existed within the bounds of anti-discrimination laws and, in California, within the strictures of the Fair Chance Act.

What Comes Next: Caution Over Celebration

So, what should a California employer do tomorrow morning? The answer, according to every legal expert analyzing this issue, is to stay the course. The temptation might be to relax policies that were developed to comply with the now-rescinded federal guidance. That would be a mistake. The risk isn’t just a lawsuit from an applicant; it’s a lawsuit from a state agency like the Civil Rights Department, which has its own robust enforcement mechanisms.

Ep179: EEOC Criminal Background Check Guidance Rescinded

The practical takeaway is one of caution, not celebration. Employers should review their policies to ensure they are airtight under California law. They should double-check that their hiring managers are properly trained on the individualized assessment process and the required notice-and-response periods. They should also be mindful of local ordinances, like the one in San Francisco, that can be even stricter than state law. As Seyfarth’s analysis concluded, the message is clear: do not assume the rescission creates a free pass for criminal-history screening.

The EEOC’s move is a political and philosophical shift, not a legal one. It reflects a new administration’s view of regulatory enforcement. But for the people of California, the rules of the road haven’t changed. The path to a fair hiring process in this state remains clearly marked, and employers who veer off it do so at great peril. The real story here isn’t what the federal government stopped doing; it’s what the state of California will continue to do: ensure that a person’s past doesn’t have to define their future.