Background checks are a routine part of the hiring process for employers. They confirm the accuracy of information provided by job candidates and evaluate their suitability for specific roles. Auditing an individual's criminal history is a central aspect of these checks. Employers primarily focus on establishing a secure work environment for employees, customers, and the organization, and conducting a background check is the starting point.

Amidst these practices, the legal aspects of background checks and the rights of job applicants have become significant subjects of discussion and regulation. These conversations and regulations strive to find a careful equilibrium between employers' concerns about the safety of their hires and the rights of applicants. The goal is to provide a fair chance for individuals with a criminal history to rehabilitate and enhance their lives post-conviction.

This article explains what you need to know about criminal record checks.

Understanding Background Checks

Employers frequently enlist third-party companies (background screening firms or consumer reporting agencies). These firms conduct thorough background checks on potential employees. These external entities specialize in collecting and verifying information about individuals, providing employers with valuable insights for informed hiring decisions.

Once engaged, the background screening company compiles the information into a comprehensive report. This report is a crucial tool for employers, offering a consolidated overview of the candidate's background. It aids in the evaluation of qualifications and suitability for the intended position.

Their access to extensive databases and specialized resources sets these third-party providers apart. Their capability to tap into various sources allows them to compile detailed reports that could be challenging for employers to achieve independently. From criminal history checks to employment verifications and other relevant data points, these companies offer a comprehensive perspective that assists employers in making well-rounded hiring decisions.

As pointed out, key data points help employers make informed decisions on their would-be hires. These include:

  1. Criminal History

The report will thoroughly examine a person's criminal history, detailing convictions, arrests, or charges. This scrutiny can extend to local, state, national, or international databases. Expect your potential employer to access all criminal incidents dating back seven years from when the check is conducted.

  1. Credit History

A review of the candidate's credit history could be part of the background check for specific roles involving financial responsibilities. A negative credit history negatively impacts your chances of being hired.

  1. Employment History

Employers are keen on your employment history. The report will show your work experiences and professional engagements chronologically. This record includes key details like previous employers' names, job titles, dates of employment, and succinct descriptions of job responsibilities.

This information provides insights into your qualifications, skills, and the relevance of your prior work experiences to the current job opportunity.

The checks will also generate your professional licenses and certifications that employers find relevant.

  1. Education Background

Employers find your educational background vital as it offers insights into your level of education, specialized knowledge, and skills acquired through formal learning. They will have access to your formal academic journey. The report will outline your educational accomplishments and qualifications. This includes details about:

  1. The schools you attended.
  2. The degrees you earned.
  3. Any academic distinctions and
  4. Pertinent coursework.

  1. Social Media Screening

Social media screening involves examining publicly available information on platforms like Facebook, X (formerly Twitter), LinkedIn, and Instagram. The aim is to gather insights into an individual's online behavior and character. Employers often incorporate this practice into the hiring process to supplement traditional background checks. This move helps employers gain a broader perspective on candidates beyond resumes or interviews. Responsible and ethical use of social media screening is paramount.

During this process, employers look for various factors, including:

  1. Assessing professionalism on platforms like LinkedIn,
  2. Identifying any inappropriate or offensive content.
  3. Evaluating communication skills through posts and comments and
  4. Determining whether a candidate's online presence aligns with the company's values and culture.

Social media screening can also serve as a means of verifying qualifications and checking the consistency of information provided by candidates.

Is it Legal for Employers to Consider Your Criminal History Before Hiring You?

Concerns arise about how an individual’s criminal past could affect his/her chances of securing employment. The following laws address potential employees' concerns regarding the employer’s use of their criminal history to determine their employability. Equally, employers are guided by these laws while evaluating a candidate's potential to join his/her company.

  1. California's Fair Chance Act

California's Fair Chance Act, also known as the "ban the box" law, restricts employers from inquiring about an applicant's criminal history during the initial hiring process. The primary aim is to provide individuals with criminal records a fair opportunity for employment by deferring questions about their criminal history until later in the hiring process.

Under this law, applicable to employers with five or more employees, the inquiry into an applicant's criminal history is delayed until a conditional job offer has been extended. Employers are mandated to assess a candidate's qualifications before considering their criminal history.

The California Fair Chance Act emphasizes the need for an individualized assessment when an employer examines an applicant's criminal history. Factors to be considered include:

  • The nature and severity of the offense.
  • The time that has passed since the crime occurred and
  • The relevance of the violation to the nature of the job.

Furthermore, the law mandates that if an employer plans to take adverse action based on an applicant's criminal history, they must provide a written notice to the applicant. This notice should include a copy of the criminal history report and additional supporting documents. However, this decision should be based on a business necessity.

After receiving the preliminary decision to deny employment based on criminal history, the applicant is granted a minimum of five business days to respond. During this period, the applicant can submit evidence showing rehabilitation and mitigating circumstances, like the completion of rehabilitation programs or participation in community service.

As mandated by the Fair Chance Act, if the applicant responds within the specified timeframe, the employer must consider the submitted information. After this consideration, the employer has two choices:

  1. Hire the applicant — If the employer deems the individual suitable for the position after reviewing the response and acknowledging rehabilitation efforts, they could hire the applicant.
  2. Deny employment based on criminal record — Alternatively, the employer could maintain the initial decision to deny employment. He/she will consider the information in the applicant's criminal record.

  1. The Los Angeles Fair Chance Ordinances

The Los Angeles Fair Chance Initiative for Hiring Ordinance (FCIHO) was enacted to ensure fair practices were upheld regarding the hiring process. They provide a "fair chance" by enabling applicants to submit evidence justifying their eligibility for employment if an employer decides to reject their application due to their criminal history. Los Angeles and San Francisco have revised and aligned their ordinances with the ban-the-box law, which offers increased protection for applicants.

  1. The Fair Credit Reporting Act (FCRA)

The Fair Credit Reporting Act (FCRA) was enacted to ensure accuracy, fairness, and privacy in credit reporting. The FCRA oversees the operations of Consumer Reporting Agencies (CRAs), commonly known as credit bureaus. These agencies are tasked with collecting and maintaining consumer credit information and furnishing reports to businesses for purposes sanctioned by the law.

A pivotal provision of the FCRA secures consumers the right to access their credit reports annually, with one complimentary report available from each major credit bureau. Additional reports could be obtained under specific circumstances. This ensures consumers stay well-informed about their credit status.

CRAs are mandated to adhere to reasonable procedures. They must ensure the precision of the handled data. In cases of inaccuracies, consumers retain the right to dispute information in their credit reports, emphasizing the principles of accuracy and fairness.

The FCRA also outlines permissible purposes for accessing consumer reports. These include credit decisions, employment, insurance underwriting, and rental housing. Significantly, the law introduces safeguards like notice and consent requirements for employers seeking consumer reports for employment purposes. Individuals must be duly informed, with their written consent obtained before such inquiries.

In instances of adverse actions, like credit or employment denial based on information in a consumer report, the FCRA ensures affected individuals receive comprehensive adverse action notices. These notices furnish specific information about consumers' rights, enhancing transparency in decision-making.

Furthermore, consumers can request security freezes on their credit reports, curbing unauthorized access. Additionally, individuals can proactively activate fraud alerts, receiving notifications of suspicious activities to safeguard their financial well-being.

  1. The California Information Privacy Act (CIPA)

CIPA, a California statute, aligns with crucial aspects of the federal Fair Credit Reporting Act. Specifically, it requires employers to obtain an applicant's consent before proceeding with a criminal background check. In cases where the employer handles the background check internally, the law specifies that the applicant must be allowed to review the report. Should the applicant choose this option, the employer must provide them with a copy of the report.

  1. Anti-Discrimination Laws

California employers could face legal repercussions if they implement a policy that automatically denies employment to all applicants with a criminal record. These policies, often termed a blanket ban, are considered discriminatory under federal and state laws.

The federal Equal Employment Opportunity Commission (EEOC) and the California Fair Employment and Housing Act (FEHA) emphasize the importance of individualized consideration when assessing an applicant's criminal history. This approach involves considering the factors mentioned above, that is:

  • The nature of the offense.
  • Its relevance to the job, and
  • The time elapsed since the conviction.

Employers adopting a blanket policy without considering these factors risk disproportionately impacting certain groups. This could lead to disparate impact discrimination claims. California employers should embrace fair and personalized hiring practices to avoid legal complications. They should evaluate each applicant's criminal history on a case-by-case basis concerning the specific job requirements.

Clearing Negative Information from Your Record

Though the legal provisions are in place, there remains a possibility that a criminal record will adversely impact your employment chances and other aspects of your life, including access to housing and financing.

The all-important question that follows is, “What are the avenues to clearing the adverse information in my history?”

Yes, there are. Any of the following options can help you address your criminal history.

  1. Expungements

As defined in Penal Code 1203.4, expungements offer a legal avenue to clear certain past convictions. The expungement process is a post-conviction remedy that enables eligible individuals to petition the court for the setting aside or dismissal of a conviction. While it does not entirely erase the conviction, it alters the legal status of the case.

According to Penal Code 1203.4, if you complete probation or secure an early release, meeting other specified criteria, you qualify to file a petition for the dismissal of the conviction. Once granted, the conviction is set aside, and the court records reflect a plea of "not guilty." This change results in the dismissal of the case.

  1. Certificate of Rehabilitation

The Certificate of Rehabilitation is a formal court order recognizing an individual's rehabilitation efforts after a felony conviction. While it does not expunge the conviction, it officially acknowledges the person's commitment to personal improvement. Acquiring a Certificate of Rehabilitation can have positive legal implications. It potentially acts as a pardon recommendation and offers relief from specific sex offender registration requirements.

These certificates are regulated by specific sections of the Penal Code, namely sections 4852.01 to 4852.21. To be eligible for a Certificate of Rehabilitation, individuals generally include:

  • Those convicted of a felony and sentenced to a state penal institution or
  • Probation with subsequent expungement.
  • Individuals with expunged misdemeanor sex offenses listed in Penal Code 290.

Key eligibility criteria involve a minimum residency of five years in California. Further, you must be on a rehabilitation period between two and five years following release from custody, probation, or parole completion. Rehabilitation, in this context, refers to maintaining a clean legal record.

  1. Governor’s Pardon

A governor's pardon is an official act of clemency the California governor grants. It offers forgiveness for a conviction and alleviates legal consequences. Within the governor's discretionary authority, this pardon is comprehensive, distinct from other forms of clemency like commutation or reprieve.

Individuals seeking a governor's Pardon submit detailed applications outlining reasons for clemency. The submission should be accompanied by evidence showcasing rehabilitation and positive societal contributions. The governor assesses each case individually, taking into account factors such as:

  • The offense's nature.
  • The individual's criminal history and
  • Their conduct post-conviction.

  1. Automatic Record Sealing

Senate Bill 731 and Assembly Bill 1076, collectively known as the Clean Slate Act, significantly overhaul the handling of arrest and conviction records. Through automatic relief, these bills pave the way for the automatic clearance of records for the majority. However, specific conditions apply:

  • Dismissed charges — Swift and immediate clearance.
  • Probationary convictions — Cleared upon the conclusion of the respective case.
  • Misdemeanor arrests — Cleared after one year if no charges are filed.
  • Felony arrests — Cleared after three years if no charges are filed.
  • Other misdemeanor convictions — Clearance initiated one year after the case reaches closure.
  • Other felony convictions — Automatic clearance four years after the case concludes, except for violent, serious, or sex offender felonies.

  1. Petitions for the Courts to Find You Factually Innocent

Successfully filing a petition under Penal Code 851.8 is essential after an arrest. It shows no reasonable cause to believe you committed an offense. When granted, this petition mandates the law enforcement agency to seal the arrest records for three years. After which, both the records and the petition are permanently destroyed.

Once sealed, these records will not surface in background checks. It thus allows you to assert that your record is clean. Eligibility to file a petition extends to situations like:

  • Being detained without formal arrest.
  • Being arrested without formal charges.
  • Facing dropped charges or
  • Being acquitted after trial.

The process aims to rectify unjust arrests, protect innocence, and ensure a fair reputation for those wrongly implicated.

  1. Sealing Juvenile Records

Sealing records under Welfare and Institutions Code 781 allows for the confidential treatment of juvenile records. It effectively shields them from public view. This process offers individuals a chance for a fresh start by preventing the disclosure of past offenses.

For those seeking to seal their juvenile records, specific conditions must be met:

  • You are 18 years old or older, or a minimum of five years have passed since the juvenile court's jurisdiction concluded.
  • You have not been convicted in juvenile court after turning 14 for specific serious offenses like torture, murder, or robbery.
  • There is no adult conviction for an offense involving moral turpitude.

Note: While sealing juvenile records does not erase the conviction, it significantly restricts access to the information contained within these records.

Checking Your Criminal Record

If you want to access your criminal record in California, residents can follow the following process:

  • Complete the BCIA 8016RR form.
  • Go for fingerprinting at one of the designated Live Scan locations.
  • Pay a $25 fee to the California Department of Justice.

For non-California residents, the steps include:

  • Fill out the BCIA 8705 form.
  • Go for fingerprinting. Further, ensure the card contains full name, gender, date of birth, and return mailing address.
  • Pay $25 through a personal check, money order, or certified check payable to the California Department of Justice.
  • Mail the documents to the California Department of Justice, Bureau of Criminal Identification and Analysis, Record Review and Challenge Section, PO Box 160207, Sacramento, CA 95816-0207.

Find a Criminal Defense Attorney Near Me

Worrying about how your criminal past will affect your employability is natural, especially if you are looking for a footing to start your life on a clean slate. In some situations, employers will infringe on your rights during the assessment stage. Call the Los Angeles Criminal Attorney immediately if it happens or if you suspect the employer acted in contravention of the laws on background checks. Our team will evaluate your case and advise you on the way forward. Call us at 424-333-0943 for further assistance.