You applied for a job. Things were moving forward. Then a letter arrived saying the employer was considering taking adverse action based on your background check. Attached was a copy of the report and a Summary of Your Rights.
A pre-adverse action notice is a step employers must take before rejecting you based on a background check. It is not a final decision. It is a warning that gives you a window to respond. In California, your rights go further than federal law, especially if a criminal record is involved.
What a Pre-Adverse Action Notice Is
A pre-adverse action notice is a document an employer must send before denying you a job, rescinding an offer, or taking other negative action based on a consumer report (a background check run by a third-party screening company).
The federal Fair Credit Reporting Act (FCRA) requires the employer to give you:
- A copy of the consumer report it received
- A copy of “A Summary of Your Rights Under the Fair Credit Reporting Act“
- A reasonable amount of time to respond before any final decision
The point is to let you dispute wrong information or provide context before losing the job.
Why You Got One
The employer found something in your background check that may cause it to deny you the position. Common triggers:
- Criminal records, including arrests, convictions, or pending charges
- Negative entries on a credit report (in roles where credit checks are legal)
- Gaps or discrepancies in employment or education history
- Driving record issues for jobs involving vehicle operation
- Information obtained through reference checks
Getting this notice does not mean the decision is made. You still have time.
Your Rights Under California Law
California adds significant protections on top of the FCRA. Two state laws do most of the work: the Investigative Consumer Reporting Agencies Act (ICRAA) at California Civil Code section 1786 and the California Fair Chance Act at California Government Code section 12952.
The Fair Chance Act
The Fair Chance Act applies to employers with five or more employees. If a California employer wants to rescind a conditional job offer based on your criminal history, it must:
- Conduct an individualized assessment of whether the conviction has a direct and adverse relationship with the specific duties of the job
- Send you a written pre-adverse action notice identifying the conviction at issue and attaching the background check report
- Give you at least five business days to respond
- If you notify the employer within those five days that you dispute the accuracy of the report, give you five additional business days to respond
- Consider any information you provide, including evidence of rehabilitation, before making a final decision
The individualized assessment must weigh three factors: the nature and gravity of the offense, the time that has passed since the offense and completion of the sentence, and the nature of the job sought.
The ICRAA
The ICRAA limits what can appear in your background check in the first place.
Most criminal convictions cannot be reported if they are more than seven years old, regardless of how much the job pays. (Federal law allows reporting beyond seven years for jobs paying over $75,000; California closes that gap.)
Arrests that did not result in a conviction generally cannot be considered at all under California Labor Code section 432.7.
What to Do If You Get One
Do not assume the decision is final. Take these steps right away.
Read the notice and the attached report carefully. Look for inaccurate information, outdated entries, records that belong to someone else, or convictions that should have been sealed or expunged.
Dispute errors with the screening company in writing. Under the FCRA, the consumer reporting agency generally must investigate within 30 days and correct errors.
Respond to the employer in writing. For criminal history, include evidence of rehabilitation, time elapsed since the offense, completion of treatment or education programs, or how the conduct does not relate to the job’s duties.
Watch your deadlines. Under the Fair Chance Act, you have at least five business days, plus five more if you notify the employer you are disputing the report’s accuracy.
Talk to an employment attorney if the screening company refuses to fix errors or the employer is using your background check in a way the law does not allow.
What Happens After You Respond
If the employer decides to move forward, it must send a final adverse action notice including:
- The name, address, and phone number of the consumer reporting agency that provided the report
- A statement that the agency did not make the employment decision and cannot explain it
- Notice of your right to obtain a free copy of the report from the agency within 60 days
- Notice of your right to dispute the accuracy or completeness of the information
If the employer skipped either the federal FCRA process or California’s stricter requirements, it may be liable.
Under California Civil Code section 1786.50, an employer that fails to comply with the ICRAA is liable to the consumer for actual damages or $10,000, whichever is greater, plus attorney fees and costs. Punitive damages may also be available if the violation was grossly negligent or willful.
When the Process Goes Wrong
The most common violations:
- Skipping the pre-adverse action notice and just rescinding the offer
- Failing to attach the background check report
- Refusing to wait five business days before deciding
- Ignoring information you provide in response
- Relying on records that cannot legally be considered, like arrests without conviction or convictions older than seven years
- Failing to conduct an individualized assessment
If your conditional job offer was pulled and you suspect the employer’s decision was tied to a protected characteristic rather than the conviction itself, that may also raise a separate employment discrimination claim.
Talk to a California Employment Lawyer
A pre-adverse action notice is your chance to respond, not a final rejection. But if an employer skipped the required steps, used inaccurate information, or relied on criminal history without an individualized assessment, your rights may have been violated.
At Malk Law Firm, we represent California employees and applicants harmed by improper background check practices. If something feels off about how your pre-adverse action notice was handled, contact us today for a confidential consultation.