Whether an employer can weigh a marijuana-related conviction on a background check increasingly depends on the state, not just on whether cannabis happens to be legal there now. A small number of states, including California and New York, have specific laws limiting how far back an employer can ask about or consider a marijuana conviction, on top of the baseline rule that applies to any conviction record everywhere: EEOC guidance calling for an individualized assessment rather than an automatic disqualification. None of this is the same question as whether or how a company should drug test, which is a separate policy decision covered in Reveal’s guide to drug testing and background screening together.
This guide focuses on the record side: what shows up on a criminal background check, and what the law says an employer can do with it. Every legal claim below is checked against the actual state statute or agency guidance.
Legalization Does Not Erase an Old Conviction by Itself
A state legalizing marijuana does not automatically wipe out convictions that happened before legalization. Those records only go away through a specific relief mechanism, such as automatic record review, resentencing, expungement, or a state’s broader clean slate law (Reveal covers how those work generally in clean slate laws and background checks). Two states built marijuana-specific relief into their legalization laws, so an employer running a criminal background check in either may be looking at a record already reduced, sealed, or cleared:
- California created an automatic statewide review process for old marijuana convictions under Health and Safety Code §11361.9 (Assembly Bill 1793, effective January 1, 2019), directing courts to identify eligible convictions for recall, dismissal, sealing, or redesignation without the person filing anything, under the framework in Health and Safety Code §11361.8.
- New York required automatic expungement of specified marijuana convictions under the Marihuana Regulation and Taxation Act, codified at Criminal Procedure Law §440.46-a, completed by March 31, 2023 according to New York Attorney General guidance.
State Laws That Specifically Address Marijuana Records or Off-Duty Use
Beyond record relief, a few states directly restrict what an employer may ask about, consider, or act on regarding marijuana. The table below separates two things often lumped together: rules about a marijuana conviction on a person’s record, and rules about legal, off-duty marijuana use that has nothing to do with a conviction.
| State | Law | Effective | What It Covers |
|---|---|---|---|
| California | Labor Code §432.8 | In effect | Conviction record: generally bars asking about, or using as a hiring factor, specified marijuana-related convictions more than two years old |
| California | Government Code §12954 (AB 2188, amending FEHA) | January 1, 2024 | Off-duty use, not a conviction rule: bars discrimination based on cannabis use away from work, and bars relying on a test that only detects non-psychoactive metabolites; on-the-job possession or impairment remains a valid basis for action |
| New York | Criminal Procedure Law §440.46-a (Marihuana Regulation and Taxation Act) | Automatic expungement completed by March 31, 2023 | Conviction record: specified prior marijuana convictions were automatically vacated, dismissed, and expunged, so many should no longer appear on a background check at all |
| New York | Labor Law §201-d, as amended by the MRTA | March 31, 2021 | Off-duty use, not a conviction rule: bars refusing to hire or otherwise discriminating against someone for legal marijuana use off-premises and outside work hours, subject to exceptions like federal contract requirements and on-the-job impairment, per NY DOL guidance |
| New York | Correction Law Article 23-A | Applies to any prior conviction | Conviction record, general rule: for a marijuana conviction not automatically expunged, an employer generally cannot deny employment based on it unless there is a direct relationship to the job or an unreasonable risk, per NY DOL guidance on Article 23-A |
Notice the pattern: California and New York each pair a rule about the conviction record itself with a separate rule about off-duty use. Treating those two as the same thing is a common mistake. A candidate’s decades-old marijuana possession conviction and a candidate’s legal weekend cannabis use are different facts, governed by different statutes, even in the same state.
The Baseline That Applies Everywhere: Individualized Assessment
Outside of a specific state carve-out like the ones above, a marijuana conviction is still a conviction, and it is subject to the same general framework that applies to any conviction record under EEOC guidance on the use of arrest and conviction records in employment decisions. That guidance points employers toward considering the nature of the offense, how much time has passed, and the nature of the job, and toward giving the candidate a chance to provide context, rather than applying a blanket rule that any drug-related conviction disqualifies a candidate automatically. A marijuana conviction from years ago for simple possession is a different fact pattern than a recent conviction for distribution near a school, and an individualized assessment is what distinguishes the two.
This individualized standard sits alongside, not in place of, any state-specific fair chance hiring rules about when and how an employer can ask about criminal history in the first place; Reveal covers those separately in ban-the-box and fair chance hiring laws.
Records vs. Testing: Two Different Compliance Questions
It is easy to conflate “how do we handle a marijuana record we find” with “should we drug test for marijuana,” but they are separate decisions with separate rules. A background check surfaces what already happened, a conviction on the public record. A drug test measures a substance in a candidate’s system right now, and increasingly, in states like California and New York, a positive test for cannabis alone, absent signs of impairment, is not something an employer can rely on to deny employment. Reveal’s guide to drug testing and background screening together walks through how the two programs typically fit together; this article is specifically about the record side. An employer’s employment background check policy and its drug testing policy should each reflect current law on their own terms.
What Employers Should Do
- Check state and local rules before asking about or weighing a marijuana conviction, especially in a state with a specific law like California’s or New York’s, since lookback periods and exceptions are narrow.
- Confirm whether a record has already been addressed by an automatic relief process before treating it as current; a marijuana conviction that predates legalization may already be reduced, sealed, or expunged.
- Apply an individualized assessment to any conviction that remains reportable, consistent with EEOC guidance, rather than a blanket policy treating any marijuana-related conviction as automatically disqualifying.
- Keep the drug testing policy and the background check policy separate in writing, so a hiring manager is not applying record-based reasoning to a testing decision or vice versa.
- Follow the standard adverse action process whenever a report factors into a negative decision: a pre-adverse action notice, a copy of the report, a copy of the Summary of Rights, and a reasonable waiting period before any final notice.
- Give candidates a way to flag an outdated record. If a candidate says a marijuana conviction should have been expunged or sealed, that is a dispute for the consumer reporting agency to investigate; see how applicant disputes are handled.
Because these state-specific rules are narrow and still evolving, staffing agencies and multi-state employers should confirm current requirements in each operating state with their own counsel. Reveal’s pricing page outlines how criminal record and drug testing coordination can be bundled for multi-state screening programs.
Frequently Asked Questions
Can an employer reject a candidate just because of a marijuana conviction?
Not automatically. EEOC guidance calls for an individualized assessment of any conviction record, including the nature of the offense, the time that has passed, and the job in question, rather than treating a conviction as an automatic bar. In states like California and New York, additional rules further limit how far back a marijuana conviction can even be asked about or considered.
Does legalizing marijuana automatically clear old marijuana convictions?
No. Legalization changes what is illegal going forward; it does not by itself erase a past conviction. Some states, including California and New York, paired legalization with a specific automatic review or expungement process for eligible past marijuana convictions, but that relief comes from a separate statute, not from legalization alone.
What is the difference between a state’s rule on marijuana conviction records and its rule on off-duty marijuana use?
A conviction-record rule, like California’s Labor Code §432.8 or New York’s automatic expungement under the Marihuana Regulation and Taxation Act, governs what is on a person’s criminal history and what an employer can ask about or consider from the past. An off-duty use rule, like California’s Government Code §12954 or New York’s Labor Law §201-d, governs whether an employer can penalize someone today for legal cannabis use away from work. They are separate protections and can apply to the same person for different reasons.
Do California and New York limit how far back an employer can look at a marijuana conviction?
Yes, within specific bounds. California’s Labor Code §432.8 generally bars asking about or considering specified marijuana-related convictions more than two years old. New York automatically expunged many marijuana convictions outright under the Marihuana Regulation and Taxation Act, and any that remain are still subject to the individualized assessment standard in Correction Law Article 23-A.
How is this different from a company’s marijuana drug testing policy?
A background check reports a past conviction; a drug test measures current substance use. They are governed by different rules and often by different statutes even within the same state. A state that restricts how an employer treats an old marijuana conviction, such as California or New York, may separately restrict penalizing an employee for a positive test that reflects only off-duty, lawful use rather than on-the-job impairment.
What should an employer do if a candidate says an old marijuana conviction should no longer show up?
Treat it as a dispute and have the consumer reporting agency investigate, rather than making an assumption either way. If the record was in fact automatically expunged, sealed, or reduced under a relief statute, a corrected report should reflect that.
Related Reading
Sealed and expunged records are not unique to marijuana offenses; a growing number of states now seal or expunge a broader range of eligible records automatically. See Reveal’s guide to clean slate laws and background checks for how that process works and which states have enacted it.
This article is general information, not legal advice. Requirements around marijuana convictions, off-duty use protections, and background check reporting vary by state, change over time, and can depend on the specific facts of a case. Employers should confirm current obligations with their own counsel before making screening, testing, or hiring decisions.
