California’s AB 2064 and AB 2095 signal a shift in how employers use criminal history, moving from process-driven compliance toward clearer, job-related justification.
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California employers already operate within one of the most structured fair chance hiring frameworks in the country. For years, the focus has been on timing. Employers wait until after a conditional offer, evaluate conviction history, and follow a defined process before making a final decision.
Two bills moving through the legislature suggest that the next phase will look different. Assembly Bill 2095 and Assembly Bill 2064 approach the same issue from different angles, but together they point in the same direction. The question is no longer only when employers may consider criminal history; it’s how they justify doing so.
That shift has practical consequences for how hiring decisions are made, documented, and defended.
Where The Current Framework Stands
California’s Fair Chance Act establishes a familiar structure for employers:
Criminal history inquiries must wait until after a conditional offer Employers must conduct an individualized assessment before denying employment Applicants must receive notice of a potential adverse decision and an opportunity to respond
An individualized assessment requires the employer to evaluate the nature of the offense, the time that has passed, and how the conduct relates to the duties of the job. The goal is to determine whether the conviction has a direct and adverse relationship to the position.
In practice, most compliance programs focus on sequencing and notice. Employers build workflows that ensure background checks occur at the right time and that candidates are notified before a final decision is made.
The law requires that this assessment be performed, and that employers identify the conviction that may lead to disqualification when notifying the candidate. It does not require employers to document the assessment as a standalone analysis or provide the underlying reasoning behind that decision.
As a result, the conclusion is visible, but the reasoning often remains internal. That approach may not hold if either of these bills moves forward.
AB 2064: A Liability Shift
AB 2064 takes a step that stands out. It adds criminal history to the list of protected characteristics under California law, placing it alongside categories like race, disability, and gender under statutes such as the Fair Employment and Housing Act (FEHA).
That change reframes how criminal history decisions are evaluated.
Today, employers ask whether they followed the Fair Chance Act process. Under AB 2064, they may also need to answer whether a decision involving criminal history creates exposure under a broader civil rights framework.
The bill also reinforces the standard employers must meet when relying on criminal history. To deny employment, an employer must show that the decision is job-related, consistent with business necessity, and that the conviction has a direct and adverse relationship to the duties of the position.
That language aligns with existing guidance, but its placement matters. Embedding it within FEHA strengthens the expectation that employers can explain and defend their reasoning.
AB 2064 also requires employers to provide written notice that explains that reasoning before making a final decision.
n practical terms, employers still identify the relevant conviction history, provide the background check report, and allow the applicant to respond.
Employers must now explain why that conviction matters for the job. The workflow stays largely the same; the expectation around explanation does not.
AB 2095: A Workflow Shift
AB 2095 takes a more structural approach. The bill reaches earlier into the hiring process and introduces additional requirements around transparency and documentation.
Employers would need to provide a written list of job duties that could relate to disqualifying convictions before requesting a background check. The bill would also prohibit employers from requiring applicants to self-disclose conviction history, shifting greater reliance to formal screening processes.
At the same time, individualized assessments would need to be documented in writing, and the legislation would introduce a rebuttable presumption in favor of applicants who have completed their sentence or hold a required credential. Together, these changes place more emphasis on how employers structure their decision-making process and how that process is recorded.
Where current law emphasizes timing, AB 2095 emphasizes documentation, transparency, and consistency from the outset.
Two Bills, One Direction
Taken together, these bills move California beyond a process-driven framework and toward one that emphasizes explanation.
Under the current model, employers conduct an individualized assessment and communicate the outcome by identifying the conviction at issue. The underlying reasoning often stays behind the scenes.
AB 2064 and AB 2095 move beyond that model. Identifying the conviction is no longer enough. Employers must connect the dots. They must explain why that conviction has a direct and adverse relationship to the job and why it justifies the decision.
The distinction between the two bills is important. AB 2064 raises the expectation that employers can clearly explain and defend their reasoning within a civil rights framework. AB 2095 goes further by requiring that reasoning to be structured, documented, and introduced earlier in the hiring process.
Employers have always had to do the analysis. These proposals suggest they may now need to show it.
What Employers Should Be Thinking About Now
These proposals reflect a broader trend. Regulation is moving beyond procedural safeguards and toward the reasoning behind employment decisions.
For employers, that shift shows up in how hiring decisions are structured and explained. Job descriptions may need to do more than outline responsibilities. They may need to support how employers evaluate risk tied to specific duties.
Adjudication guidelines will likely face closer scrutiny as well. Policies that rely on broad categories of offenses may be harder to defend without a clear and consistent connection to the role.
Documentation practices may also need to evolve. Individualized assessments are already required, but the expectation is moving toward written explanations that can be reviewed and defended if challenged.
Consistency across decision-makers also becomes more important. As reasoning plays a larger role, variation in how hiring managers apply standards becomes more difficult to justify.
None of these changes are entirely new concepts. What is changing is how central they are to compliance.
Parting Thoughts
California has long shaped how employers approach background screening. These bills suggest the state is moving beyond regulating when criminal history can be considered and toward regulating how employers justify their decisions.
That shift matters; it places more weight on the connection between job duties and risk. It raises expectations around documentation and explanation. And it increases the importance of consistency across hiring decisions.
Whether these bills pass in their current form remains to be seen. What is clear is that the direction of travel has not changed.
For employers, the takeaway is straightforward. Compliance is becoming less about following a sequence of steps and more about demonstrating the reasoning behind each decision. That is a different kind of standard, and it is one that may shape hiring practices well beyond California.