When you face a criminal charge or conviction, one of your primary concerns is whether the charge or possible convictions will appear on your criminal record. Employers, companies, and property managers often conduct criminal background checks when making decisions regarding lease contracts, hiring, or promotions. Typically, a criminal conviction will reflect poorly on you, and the decision maker can use the record to discriminate against you even when you meet the requisite qualifications. If you have faced a criminal charge or have been found guilty of an offense in the past, you want to understand how criminal record checks work and what the expectations are.
Overview of a Criminal Background or Record Check
A criminal background check is a process that enables an individual to investigate another’s criminal history to reveal prior misdemeanor or felony convictions. The criminal record checks also uncover prior arrests and ongoing criminal cases.
The term “criminal record check” is broad and encompasses multiple layers of your background record for review, contingent on the person conducting the check. When the police arrest you or run a background check, they acquire a rap sheet from the DOJ or FBI outlining all the instances you have been apprehended and the outcomes of the arrests, like charge dismissals or convictions. These rap sheets are confidential and can only be used by government authorities. Private citizens, including employers and property managers, are not authorized to access these records. Any individual who shares the records with the public without approval or justification risks misdemeanor charges. However, you can request your record for counterchecking.
Employers, property managers, and other individuals with an interest in your criminal past can only obtain your records under certain restrictions. Some private entities conduct independent background checks on behalf of interested parties, doing so in compliance with the guidelines provided under the law. Independent criminal record checks reveal limited details, while specific details of your criminal record remain unavailable to interested parties. Therefore, many parties turn to private organizations or investigative reporting entities that conduct background checks and compile reports used to reveal a company’s or an individual’s past.
Details Revealed By Criminal Record Checks
Criminal record checks reveal several aspects of your life, including:
- Your military details, such as service dates, your rank, assignments, and honors
- Negative information on housing, like prior evictions
- The schools you joined and the years you spent there
- Adverse details of your credit record
- Information on your workers’ comp
- Misdemeanor or felony guilty verdicts against you in the last seven years
Interested parties, including employers, can access these details of your past life. However, certain information about your past life cannot be disclosed to these parties during background checks. The details employers cannot access when running a criminal history check are:
- Criminal arrests that result in formal charges but no convictions, unless the matter remains active in court.
- Criminal convictions that did not happen within the last seven years
- Criminal convictions overturned by a pardon
- An arrest leading to placement in a diversion program, which you have successfully finished
- Expunged and sealed convictions
- Particular marijuana crimes
- Arrests not resulting in guilty verdicts, excluding those whose charges are still active in court
References
Interested parties, such as employers, can contact the references you have provided during background checks to gain a deeper understanding of you. Typical references job applicants provide to employers are people, such as:
- Former employers and coworkers
- Mentors and role models
- Family members and friends
- Neighbors
- Associates
The common details highlighted during the references concern:
- Your character
- Your reputation
- Your attitude
- Your work-ethic
- Your personality qualities
- Your behavior
The Seven-Year Guideline
California employers are governed by the seven-year rule when conducting background checks. After making a conditional employment offer, they can access your criminal history dating back seven years, although exceptions to this rule may exist. A prospective employer cannot conduct this search if you have not received the conditional employment. Additionally, they cannot access any convictions that are older than seven years. Even if they have access, they cannot use the information to discriminate against you or disqualify you from the position.
An example of legal exemptions that apply during criminal record checks is the case of Jane, a 37-year-old who was convicted of drunk driving under Vehicle Code 23152(b). After the conviction, Jane did not engage in another criminal violation until she turned 32, when she was arrested and convicted for shoplifting. At her current age of 37, Jane is seeking employment and is concerned that the DUI conviction will hurt her application. However, due to the seven-year rule, the employer cannot retrieve information on a sentence that occurred fifteen years ago, although the details of the shoplifting conviction will still be available, as it is less than seven years old.
Sources of the Information Disclosed During Criminal Background Checks
The information disclosed during criminal record checks originates from various sources, including both criminal and civil records. The familiar sources for background check data include:
- Tenant records
- Social security records or data
- State licensing records
- Criminal records, arrest records, and court data
- Insurance claim information or reports
- Credit information or records from various consumer reporting organizations
- Your references
- Your workers’ comp report
- Check writing record
- Education information
- DMV or car registration details
A record check does not always gather your information from all these sources. They can use only a limited number of sources. Specific details cannot be retrieved from these sources, as the law limits or places exemptions on the kind of information employers can access.
Additionally, California statutes apply legal exemptions to the retrieval of confidential medical information. An employer cannot retrieve your private medical records. They can only obtain information to help them decide if a potential employee possesses the necessary skills to perform specific duties, enabling them to make an informed hiring decision.
Laws Employers Must Abide By During Criminal Background Checks
It is legal for an employer to conduct criminal record checks on a prospective employee. Nevertheless, several statutes impose restrictions and responsibilities on hiring entities during these checks. The laws employers must abide by during the checks are:
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The Ban-The-Box Law
The Ban-The-Box law took effect in 2018, making it a criminal violation for employers with at least five workers to conduct criminal background checks on a prospective employee without first making an acceptable conditional employment offer. It means a hiring entity should not inquire about your criminal record during the interview. Even if they learn of the record, it is illegal for them to use the information to disqualify you by default or discriminate against you, despite meeting the job qualifications. The only time they should ask about your criminal record is after you have received and accepted the conditional employment offer. Before this, they should evaluate you individually, separate from your criminal history, to determine your eligibility for the position.
If the employer discovers your criminal past, they should evaluate and consider:
- Whether the record will negatively affect your work duties
- The type and severity of your crime
- Whether the crime is substantially related to the post you are seeking
- The time that has passed from the date of the crime or completion of your sentence
A company can lawfully deny you employment after a background check if an evaluation of the criminal record shows that denying you the position is necessary for the business. If the employer decides not to hire because of the information revealed by the background check, they will notify you of this preliminary decision. Upon receipt of the written notice, you should file an answer within five days with proof of rehabilitation and mitigating factors. For instance, you provide evidence that you participated in community hours or enrolled and completed a rehabilitation program. When you file an answer, a considerate employer will review the evidence provided and offer you employment or deny you the opportunity based on your criminal past.
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The Fair Chance Act
San Francisco and Los Angeles adopted the Fair Chance law before the ban-the-box law was implemented. Nevertheless, because the ban-the-box statute provides additional protection, these two cities have amended their existing ordinances to give even more protection. The Fair Chance ordinance offers job applicants most of the rights afforded under the ban-the-box statute. The two statutes allow you to furnish the potential employer with favorable evidence to support your eligibility for a post in case they make a preliminary decision not to hire you because of your criminal record.
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Anti-Discrimination Statutes
Both state and federal statutes prohibit employers from discriminating against workers or job applicants because of their ethnicity, race, or sex preferences. Therefore, when a hiring entity has a policy that discriminates against qualified candidates due to their criminal record, it violates the law.
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The Fair Credit Reporting Act (FCRA)
Under FCRA, hiring entities have two responsibilities:
- They must receive your written approval before running criminal background checks
- Notify you in writing if they reject your job application despite your qualifications because of the information revealed by the check.
However, this Act only applies to companies that hire third parties to conduct background checks for a fee. If the company runs the checks independently, FCRA obligations do not apply.
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The California Information Privacy Act (CIPA)
CIPA is the statute governing information privacy. According to the Act, employers must obtain your approval before conducting criminal background checks. The law also prohibits employers from conducting criminal background checks on their staff. However, if they must conduct the checks:
- They must offer an alternative for viewing the background check report
- Share copies of the reports if they conduct the check
Removing Adverse Details from Your Criminal Record
When you are aware of any adverse information that could hurt your chances of securing a job when a prospective hiring organization runs criminal background checks, then you should consider clearing your record. That way, even when the private party runs the check, no negative information will show up to hurt your case.
Several ways exist to clear adverse details that may be revealed during checks. These include:
Juvenile Records Sealing
California Welfare and Institutions Code (WIC) 781 allows eligible delinquents to seal their juvenile records, thereby deterring private entities from accessing the data during criminal record checks. Record sealing under this statute means that the court closes your juvenile delinquency file, making it cease to exist and unavailable for public access.
Successfully sealing the juvenile delinquency records means that all the arrests or sustained petitions for juvenile delinquency will not appear when a private party conducts criminal record checks. Besides, with the records sealed, you can confidently say you have never been convicted when the question of your criminal record is raised in an interview.
However, you should meet specific requirements to be eligible for juvenile record closing. These are:
- You are at least 18 years old, or it has been five years since the juvenile court wardship or jurisdiction ended.
- The sustained petition in the juvenile court was not for a moral turpitude offense
- There has not been a sustained petition or conviction for serious crimes, like robbery, homicide, or torture, after turning 14.
If you meet these requirements, you can successfully petition for the closing of juvenile records.
Expungement or Expunction
Another common way to clear your record for background checks is through expungement. California PEN 1203.4 defines expungement as the withdrawal of a guilty or no-contest plea in exchange for a case dismissal. Expunction is a post-conviction relief that releases you from most but not all disabilities and collateral consequences of a criminal conviction. It gives you a clean slate from a criminal record, increasing your chances of securing a job or retaining one.
You qualify for a case dismissal if you have served your probationary term without a violation and you were not confined in a prison or would not have been imprisoned under the Prop 47 realignment.
When you have an active criminal case or have a prior conviction for a serious or violent felony. Sex offenders can also not seek a case dismissal.
When you successfully secure an expungement, you are not obligated to disclose the record to your employer, even after a conditional employment offer.
However, if you are ineligible for an expungement or your request has been denied, you can still clear your adverse record through a rehabilitation certificate or a governor’s pardon.
Certificate of Rehabilitation (COR)
COR is also a post-conviction relief in which the court issues an order acknowledging that you have been rehabilitated after a criminal conviction. PEN 4852.01 to 4852.21 outlines the eligibility criteria for a rehabilitation certificate. You qualify for a COR if you have a prior for:
- A felony violation and have been sentenced to a state prison or penal agency
- A felony offense where you were sentenced to probation, and the conviction has been expunged.
- A misdemeanor sex crime outlined under PEN 290 for which the conviction has been expunged.
Additionally, you must have lived in California for five or more consecutive years and have undergone rehabilitation for twenty-four to sixty months after completing your confinement, probation, or parole. The eligibility conditions hinge on the alleged crime. The COR will not erase the criminal record. However, you can file it as evidence of rehabilitation after receiving a preliminary decision from the employer.
Governor’s Pardon
Securing a COR acts as a default application for a pardon. A pardon is another form of post-conviction relief granted by the state governor after you have been found guilty of an offense, but you have portrayed advanced rehabilitation. The pardon relieves you from several, but not all, criminal consequences and collateral repercussions.
A pardon improves your chances of obtaining employment, as potential employers are not allowed to retrieve information about a crime that has been pardoned during background checks.
Apart from a COR, you can apply for a pardon by visiting the governor’s office directly for the application process, or obtain a recommendation for a pardon if you are still serving time.
Automatic Record Seals
After the passage of the Clean Slate statutes, which are Senate Bill (SB) 731 and Assembly Bill (AB) 1076, in July 2023, many arrests and guilty verdicts were cleared by default through automatic relief. According to the statute, misdemeanor arrests that do not result in charges should be automatically removed after 12 months, and felony arrests should be removed after 36 months.
Further, any charge resulting in a dismissal must be cleared immediately. In contrast, guilty verdicts where probation was imposed instead of a jail sentence are removed after the lapse of the probationary term.
Additionally, the Act clears all misdemeanor guilty verdicts within twelve months of the case conclusion, while felony convictions are removed after 48 months of the case conclusion, except for felony sex crimes and serious or violent felonies.
Petitioning for a Factual Innocence Certificate
PEN 851.8 allows you to lodge a petition for the finding of factual innocence after arrest. In the petition, you prove that the police lacked reasonable cause for arrest. A successful petition will compel the police in the arrest jurisdiction to clear the arrest from your criminal record. Once these records are sealed and destroyed, they will not appear during background checks, and you can confidently say to an employer you do not have a criminal past.
Find a Competent Criminal Attorney Near Me
A criminal background check can damage several aspects of your life. When you have a criminal past and are concerned that it may adversely affect your life, especially after rehabilitation, it is essential to understand how record checks work and what information they disclose. Consulting an experienced criminal attorney can help you know the checks and their impact.
At Darwish Law, we will explain how criminal background checks work and explore available post-conviction relief options to minimize the adverse effect of the record on your life. Call us today at 714-887-4810 for a no-obligation consultation in Santa Ana, CA.