A background check refers to an employer or company obtaining an individual's personal information, which contains a history of their criminal record. Those who want to conduct a criminal background check can either do it themselves or hire a third-party organization (also known as an investigative reporting agency).
What Is a Background Check?
A background check refers to an employer or company obtaining an individual's personal information, which contains a history of their criminal record. Those who want to conduct a criminal background check can either do it themselves or hire a third-party organization.
A third-party company that helps other organizations carry out a criminal background check is also referred to as an investigative reporting agency. It searches, compiles, and sells information pertaining to individuals.
What Types of Information Shows Up in a Background Check?
There are many different types of personal information that may show up in a background check, some of which include the following:
Prior criminal convictions;
Information pertaining to an individual's credit report;
Details of workers' compensation;
The individual's educational background (including years of attendance);
Information related to housing (including prior evictions); and
Military service information.
When conducting a background check, an employer or third-party agency may contact an individual's references, including their past employers, family members, friends, neighbors, and mentors.
Will a Felony Show up after 7 Years in California?
Whether it is a misdemeanor or felony, California follows the seven-year rule when it comes to employment background checks. Goss Law can explain what the most common felony charge in California is.
When Californian employers make a conditional job offer, they may request a criminal background check for the prior seven years.
Under the law, employers cannot see misdemeanor or felony convictions that are older than seven years.
What Are the Different Sources of Information Used for a Background Check in California?
Background checks in California use many different sources of information, some of which may include the following:
Criminal history information (including arrest records);
Credit reports from consumer reporting agencies;
Education records;
Social security records;
Immigration information;
Tenant history; and
State licensing records.
Are Background Checks in California Legal?
Although background checks in California are legal, there are certain restrictions on the companies or employers conducting these types of checks for employment purposes. Goss Law has answers to other questions like Can a felony be dismissed in California?
These obligations are clearly mentioned in the following California or federal laws:
The Fair Credit Reporting Act
There are two restrictions that the Fair Credit Reporting Act (FCRA) imposes on employers, and these include the following:
The need for the applicant's written consent before conducting the background check; and
Providing the applicant with a notice upon refusal of the employment application based on their criminal record.
It's important to understand that the FCRA only applies to employers that hire investigative reporting agencies to conduct background checks. However, if the employer wishes to carry out the investigation themselves, the restrictions mentioned above do not apply.
The California Information Privacy Act
The California Information Privacy Act, or CIPA, mentioned in California Civil Code §1786–§1786.640, is a statute that lays the same restrictions under the FCRA.
In addition to the need for written consent and a notice of refusal, the CIPA requires employers to provide the applicant with a review of the report and a copy of the background check report if the individual requires one.
Anti-discrimination Laws
Under state and federal laws, employers cannot discriminate against applicants on the basis of race, ethnicity, or sexual orientation.
Ban the Box Law
Under the state's ban-the-box law, private employers with more than four employees cannot ask questions pertaining to an applicant's felony conviction before making a conditional employment offer.
However, if the employer discovers the applicant's past criminal conviction, they cannot exclude them from the hiring process.
In such situations, they must determine whether or not the applicant is fit for the job by considering a number of factors. These may include the following:
The impact of the applicant's criminal record on the roles and responsibilities of the job;
The nature and severity of the offense committed;
The date of the offense; and
The nature of the job.
After carrying out an individual assessment of the applicant based on the factors mentioned above, California employers can deny employment by sending a notice of their preliminary decision to the candidate.
The applicant has the right to respond to the notice within five business days with evidence of mitigating circumstances that may turn the tables in their favor. They may give proof of completion of rehabilitation or show that they've completed community service.
When an applicant gives a response to the notice sent by the employer, California law requires the employer to make a decision based on the evidence submitted by the candidate. They may either hire the individual or deny employment.
Clearing Negative Information from Criminal Records in California
In California, there are several ways to remove negative information that may show up on criminal background checks, some of which include the following:
Expungements
An individual's criminal history may contain negative information that may affect their employment opportunities. Under Penal Code 1203.4, a person may get their criminal record expunged after completing their probation or jail term.
When a judge expunges a conviction, the individual does not have to disclose their criminal record to potential employers, even if they receive a conditional offer.
Certificates of Rehabilitation
When someone faces a conviction and completes their rehabilitation period, the court may provide them with a Certificate of Rehabilitation.
Under the California Penal Code §4852.01 – §4852.21, certain individuals are eligible for a Certificate of Rehabilitation, and these include the following:
Those convicted of a felony and sentenced to California state penal institution or agency;
Individuals with a felony conviction and granted probation who successfully get their convictions expunged; and
An individual with an expunged conviction for misdemeanor sex crimes listed under Penal Code 290 PC.
It's important to understand that a Certificate of Rehabilitation is evidence that one can submit to potential employers after being denied employment. However, it does not remove a conviction.
Governor's Pardon
After completing a satisfactory period of rehabilitation, an individual may seek a governor's pardon, which relieves them of most of the penalties associated with a criminal conviction.
There are several ways to receive a governor's pardon, and these are as follows:
Filing for a Certification of Rehabilitation with a superior court;
Filing an application with the governor's office; and
Receiving a recommendation from the California Board of Parole Hearings.
Sealing Juvenile Records
Under Welfare and Institutions Code 781, an individual can request to have their juvenile records sealed if:
The person is 18 years or older;
They do not have any offenses involving moral turpitude as an adult; and
They do not have any convictions in juvenile court after turning 14.
Criminal Convictions Can Adversely Impact One's Life. Goss Law Can Help!
The information presented in this article does not constitute legal advice. The reader must understand that every case is different, and an experienced criminal attorney can provide guidance.
Those who need help getting their convictions expunged or those accused of a crime in Sacramento, California, should call to schedule a free consultation with the skilled criminal defense attorneys at Goss Law. They can provide legal assistance and protect the defendant's rights.
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