In California, a background check will typically reveal if somebody was convicted of a misdemeanor or felony, such as common crimes like driving under the influence (DUI) or Penal Code 243.4 PC domestic battery.
A background check is when a potential employer obtains information about someone's history, including their criminal history and jail time. It is often called a criminal or employment background check. An employer can independently conduct an employment background check or hire a third-party reporting agency.
Regarding employment applications, while employers could receive information about someone's conviction, some ban-the-box laws limit when and whether prior convictions can be considered in hiring decisions.
For example, under California law, it is unlawful for a company to gain access to information on an arrest that did not lead to a conviction unless the arrest is still pending in court. Further, an employer cannot receive information on expunged or sealed convictions.
A common question is whether your misdemeanor conviction will appear on a California background check, which might affect your ability to secure a job. The simple and quick answer is yes, all criminal convictions (misdemeanors and felonies) could appear in criminal background checks, at least for a while.
Suppose you were convicted of a relatively minor misdemeanor, a first-time offense, and received probation rather than jail time. In that case, you are probably wondering whether this could come back and hurt you by appearing on an employer background check. Let's examine the more specific details below.
What is a Background Check?
Simply put, a background check is when a potential employer screens someone's history, which can disclose the following:
- Criminal history,
- Criminal convictions,
- Jail time and
- Credit reports.
As noted, employers can conduct a background check independently or hire a third party. These background checks will usually show if someone has been convicted.
Even when employers receive information regarding a conviction, some laws limit whether prior convictions can be considered in hiring decisions. Simply put, being convicted of a misdemeanor does not necessarily preclude you from obtaining work in California.
California has passed laws to promote fair employment opportunities, especially for people with a criminal history. Further, some recent changes ensure that misdemeanors are automatically sealed after some time with no further criminal activity.
Also, it's unlawful for an employer to obtain access to information on an arrest that did not lead to a conviction unless the case is pending. Employers cannot get information on any convictions expunged or sealed. State and federal laws prohibit employers in California from discriminating against applicants based on:
- race,
- gender,
- age,
- religion,
- ethnicity and
- sexual orientation.
What are the Sources for Check Information?
The background check laws in California allow parties to obtain information from several sources, including the following:
- court records,
- arrest court records,
- public records,
- DMV driving records,
- vehicle registration records,
- social security records,
- state licensing records,
- sex offender registries,
- immigration records,
- credit report,
- education records,
- public records,
- insurance claims,
- tenant history,
- workers' compensation records.
Notably, criminal convictions for misdemeanors and felonies for the past seven years are typically disclosed. It is unlawful for an employer to get access to the following information:
- An arrest that did not result in a conviction,
- An arrest that occurred over seven years before,
- An arrest that led to a successful diversion program,
- Any convictions that were expunged or sealed,
- Some marijuana offenses.
Once an employer or company has gathered all the information from these sources, they will use it to review a job application and make hiring decisions to fill any open positions.
What Shows Up on Background Checks?
Your background check or separate driving history check could disclose any of the following information:
- Any past criminal convictions (misdemeanor and felony) dating back seven years from when it was checked.
- Traffic citations.
- Negative housing information (evictions).
- Negative information listed on a credit report.
- Workers compensation information.
- Schools you attended.
- Military information.
What is the "Ban the Box" Law?
California passed the Fair Chance Act, also known as the "Ban the Box" Law (Assembly Bill 1008), in 2018. The goal is to ensure that job seekers are evaluated based on their qualifications and skills rather than their past offenses.
Under this law, employers are prohibited from inquiring about an applicant's criminal history until they have made a conditional job offer.
Individualized Assessment of Applicants
Suppose a misdemeanor conviction appears on the record. In that case, the employer must then undertake an individualized assessment. This process requires employers to consider numerous factors before rescinding an employment based on a criminal record, such as the following:
- The nature and severity of the crime.
- The time that has elapsed since the offense and completing the sentence.
- The duties associated with the job in question.
Notably, after this assessment, the employer can only rescind the conditional job offer if they can make a direct negative connection between the specific aspects of the conviction history and the inherent risks of the job.
Before deciding, the employer must give the applicant a chance to dispute the accuracy of the conviction record or show rehabilitation or other mitigating factors. This gives applicants an opportunity to explain their past and present circumstances.
What are the "Clean Slate Laws?"
California has passed additional laws that allow the automatic sealing of criminal records, provided certain conditions have been satisfied. AB 1076 and SB 731, California's "clean slate laws," have dramatically affected past convictions.
For example, suppose you're convicted of a misdemeanor. In that case, that record will automatically be sealed once you finish your probation or one year after you complete your sentence, as long as there is no further criminal activity.
The law also provides for the automatic sealing of certain non-violent felonies four years after the completion of the sentence. These laws were passed and progressively implemented starting in 2019 and became completely effective as of July 2023. If you complete your misdemeanor sentence and stay out of trouble, your offense will no longer appear on employer background checks.
Notably, after your criminal record has been sealed, you have the legal right to say “no” on whether you were convicted of a crime. If your employer can discover the sealed misdemeanor, they cannot deny employment.
The Fair Credit Reporting Act (FCRA) requires employers to get an applicant's written consent before they conduct a criminal background check and notify the applicant if they deny employment because of information discovered in the check.
The FCRA only applies to employees who use a third party for their background checks, not if the company conducts them independently. You can contact our law firm for a free case review. Cron, Israels & Stark is based in Los Angeles, CA.
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