Under the doctrine of respondeat superior, employers could face civil liability for any harm a worker causes to a third party, provided the worker is acting within the scope of their employment. Consequently, employers conduct thorough investigations of a current employee’s or job applicant’s criminal record. Please continue reading this article to learn the rules on employer use of arrest and conviction records.
The Definition of a Criminal Background Check
A background screening procedure involves searching county, state, or federal criminal databases to know if you, a job applicant, have a record of felony or misdemeanor convictions or pending charges. In other words, an employer or hiring company can perform a background check to obtain information about a job candidate’s past conduct and behavior. Depending on the databases your potential or current employer searches, different checks can disclose different crimes. For instance, a state background check will only return results of charges or convictions committed in California.
A company or employer can perform a criminal record search through any of the following:
- On their own
- By enlisting the services of third-party providers
If the employer conducts a background screening, the process can be thorough or conducted with minimal detail.
When the employer enlists third-party services, this firm is called an investigative reporting agency. The agencies provide services that include searching, compiling, and selling personal data about individuals.
A background search may reveal certain aspects of a person’s criminal history, subject to California’s restrictions on sealed and expunged records. The information will relate to the following:
Criminal History
A background search will show your criminal record, including arrests, convictions, and pending charges. It can also show if you are serving parole or probation.
An employer can only see an applicant’s criminal history if they have permission from relevant agencies.
Employers are prohibited from accessing personal information related to the following:
- Arrests that did not result in a conviction
- Convictions older than seven years
- Expungements and sealed convictions
- A criminal conviction for which a job candidate has received a pardon
- Decriminalized marijuana convictions
- Arrests resulting in the successful completion of diversion programs
Civil Records
A background search can also include details about your credit history, including suits, liens, judgments, child support payments, and other related financial information.
Credit Report
A background search can also disclose an applicant’s credit history, including late payments, bankruptcies, collections, and other financial details. The information is usually only available to employers, landlords, and other interested parties because it is considered personal information.
Verification of Education History
If a vacancy an employer is hiring for requires a degree and certificate, among other educational requirements, verifying the candidates' academic records is essential.
Certain job applicants may claim to hold degrees they are yet to complete. Others may sometimes procure certification online from sources that do not require them to attend classes.
When verifying your education history, your potential employer will confirm the institutions you claim to have attended, dates, and certificates or degrees you earned.
Employment Record Verification
The employer can ask applicants for pre-employment checks to verify their employment records.
Verifying an applicant’s claims regarding their employment history helps an employer ensure they hire trustworthy applicants and avoid potential negligent employment claims. It also lets employers know if applicants have exaggerated their qualifications or made false assertions.
When your potential employer requests employment verification, the background check will reveal the dates you worked at every workstation and your positions.
Credentials Verification
If a job opening requires you to hold specific professional licenses or credentials, a pre-employment screening can consist of verifying your qualifications.
Requesting this verification form helps employers ensure employees possess the requisite credentials and prevent chances of facing negligent employment claims.
Your potential employer can also contact your references when performing a check. These individuals may include the following:
- Friends and loved ones
- Previous employers and coworkers
- Associates
- Neighbors
- Role models or mentors
These individuals can often offer information on your reputation, character, personal traits, work ethic, and overall attitude and behavior.
Ban the Box Law
Assembly Bill 1008, also called the “ban the box” legislation or Fair Chance Act (FCA), was enacted on January 1, 2018. The regulation forbids companies or employers with at least five workers from asking about a candidate’s criminal record before making any conditional job offer. A conditional job offer is dependent on you meeting specific conditions, like a check of your criminal convictions and a background check.
Employers should not ask about or consider any previous conviction, whether a felony or misdemeanor. However, there are exemptions to this law; the regulation does not apply to the positions below:
- A job for which a local or state agency should conduct conviction history background checks
- A job as a Farm Labor Contractor
- A job where your potential employer should limit employment based on criminal history or the federal, local, or state law requires them to perform a criminal background check when hiring.
- A position with law enforcement or criminal justice authorities
The law also prohibits hiring employers from considering criminal history that did not result in a conviction. It includes juvenile records, arrests not leading to conviction, expunged convictions, and dismissed convictions.
A company cannot automatically reject you based on your criminal conviction. Instead, a company that plans to reject your application due to your criminal history should personally review you. The individualized assessment involves the employer analyzing several factors, including the following:
- The nature and seriousness of the crime
- The nature of the position being sought
- Whether a conviction record has any adverse association with the position being sought
- The duration that has elapsed since the crime commission or the completion of your sentence
A company or employer may decline to hire you after conducting this review based on the employer’s business needs. If the employer offers you a conditional offer, they will notify you of this preliminary decision. You can respond to the conditional offer with proof of completing a diversion program and mitigating factors within five days.
Next, the company or employer should consider your rehabilitation. Once the consideration is complete, the hiring company can do any of the following:
- Employ you
- Decline to employ you due to the criminal history information
Fair Credit Reporting Act (FCRA)
The FCRA works to safeguard employers and candidates. It promotes accuracy, privacy, and fairness regarding the information in consumer reporting agencies' files. The law applies if the employer seeks to utilize background searches prepared by third-party providers.
Companies or employers must adhere to FCRA guidelines when considering an adverse action against an applicant based on details in an employment background check. The hiring company should do below:
- Offer you a written notice that it has a pre-employment background check with details that could disqualify you
- Provide you with a copy of your report
- Offer you a copy of the “Summary of Consumer Rights per the FCRA”
- The employer should also give you the name, telephone number, and address of the consumer reporting agency that produced your background report. Your potential employer should also offer a statement indicating that the consumer reporting agency did not and cannot decide to take adverse action.
You have a right to every record under your name. The right allows you to ask for disclosure of your files, including background checks and credit scores. After the firm reveals records, you can petition or dispute to rectify inaccuracies. You can seek damages from the defendant if you believe the firm violated your rights when performing the background check.
California Credit Reporting Agencies Act (CCRAA)
The CCRAA restricts the circumstances under which a hiring company or employer can order a credit history on the applicant or another employee. Employers should have a legitimate business need to perform a credit report. California limits the definition of a legitimate business need per Labor Code 1024.5 and Civil Code 1785.20.5. These include the following:
- Law enforcers
- Managerial positions
- Roles that require a credit report review, like mortgage loan officers
- Positions involving access to personal data, like credit card or bank account details, birthdays, and social security numbers
- Positions at the Department of Justice
- Jobs in which the individual will be named a signatory on the employer’s credit card or bank account or authorized to sign contracts or transfer money for the employer
- Positions involving regular access to more than $10,000
The employer should use the legitimate business need to see whether the credit report is used to assess the applicants for recruiting or an employee for retention, promotion, or reassignment. The hiring company should only offer a written notice to the job candidate about the background check requirement.
California Privacy Rights Act (CPRA)
The California Privacy Rights Act supplements the California Consumer Privacy Act, extending privacy entitlements to employees and adding new requirements on companies. The law gives residents more control over their personal data and imposes new requirements on companies.
The CPRA guarantees you the following rights:
- Right to know — You can request a company to reveal the personal information it has collected about you, the sources of the personal information, why the company uses the data, and the third parties the business has disclosed the data to.
- Right to delete — You can request the business to erase the personal information it gathered and tell its service providers to do the same unless specific exemptions like the firm is lawfully required to keep the details apply.
- Entitlement to opt-out of sharing or sale — You can ask a business to stop sharing or selling your personal information.
- Entitlement to correct — You can request a firm to rectify incorrect details about you.
CPRA applies to for-profit companies that operate within the state and satisfy one of the following:
- Have a gross annual revenue that exceeds $25 million
- Share, purchase, or sell personal information of more than 100,000 residents
- Obtain more than 50% of its annual revenue from selling personal information of Golden State residents
If your employer meets the above criteria, a lot of employee data is subject to the CRPA. It includes personal information gathered during your employment relationship, like benefits information, performance evaluations, employment history, resumes, and contact details. Additionally, the law gives you the right to regulate sensitive personal information like biometric data, financial information, and social security number. To comply with the law, your employer should protect your data at all costs, including using encryption and redaction techniques.
The Investigative Consumer Reporting Agency Act (ICRAA)
The ICRAA was enacted in Civil Code Section 1786.640, which parallels federal FCRA but comes with certain additions that must be adhered to in California.
Per the Investigative Consumer Reporting Agency, consumer reporting agencies should not report background checks that include convictions older than 7 years, arrests, or charges not resulting in convictions or dismissed convictions, and expunged convictions. Reports can include pending criminal cases. These limitations apply despite the projected salary or position.
The law also requires that applicants be notified of the scope and nature of the investigation required and be given a summary of the provisions of their rights.
Los Angeles Fair Chance Ordinance (FCO)
The FCO was enacted on September 3rd, 2024. It applies to private and public employers with at least five workers working two (2) hours per week. The hiring company must be located in unincorporated Los Angeles areas (areas and communities outside the jurisdictional boundaries of incorporated cities). The county introduced the FCO to overcome the unfair prejudices and stigma related to criminal records when an employer is making employment and hiring decisions.
The law prohibits CRAs from showing information that includes the following:
- Pending charges or arrests resulting in no conviction
- Decriminalized offenses convictions
- Dismissed criminal legal cases
- Misdemeanor cannabis convictions in the past two years
- Juvenile records
- Expunged or sealed convictions
- A conviction is older than seven years from the disposition date
There are exceptions to the California 7-year lookback regulation, including the following:
- Positions involving caregiving to vulnerable individuals, like children, dependent persons, and elders above sixty-five
- Positions involving overseeing public benefits or funds; the check is restricted to the reporting convictions of crimes that involve bribery, forgery, unlawful handling of funds or negotiable instruments, robbery, theft, handling stolen goods, or embezzlement
FCO requires employers to follow multiple regulations, including the following:
- The employer should not conduct a criminal background search before a conditional offer of employment
- The company should not ask an applicant questions about their criminal record before the job interview
- The company should not review your criminal records, which you provide voluntarily
- The firm should complete a written, personalized review within established time frames for your response
- The employer should give an applicant special notice before performing a background screening for a criminal record or other checks.
The employer’s special notice to the candidate should include:
- The different types of details the check will focus on — It can include employment verification, criminal record, education verification, board’s license verification, and Department of Motor Vehicles records verification
- The job’s material requirements
- The job offer depends on the employer’s assessment of the job candidate’s criminal history.
The employer must provide a proper reason for performing a criminal screening if their company faces a potentially significant threat to its reputation or operations, if it fails to conduct an evaluation or if the position poses a severe safety risk, harm, or harassment to the firm, clients, contractors, vendors, customers, associates, or the general public.
Employers should offer this notice even when seeking to complete social media or Google searches beyond the background search process.
The law requires employers to indicate on the position’s advertisement that they intend to perform background checks.
Credit Background Restrictions (AB 22)
Per Assembly Bill 22 (AB 22), employers cannot use credit checks when making hiring decisions with the exemption of specific financial institutions. These positions include the following:
- Police officers or government positions requiring financial duty
- Managerial roles that involve independent decision-making
- Roles that require a credit report review, like mortgage loan officers
- Positions involving access to sensitive client financial data, like finance officers or accounts
- Jobs in which the individual will be named a signatory on the employer’s credit card or bank account or authorized to sign contracts or transfer money for the employer
- Positions involving regular access to more than $10,000
If a hiring company performs a consented credit report, they should provide a written disclosure and secure consent from the job candidate.
Expungement under PC 1203.4
Expungement dismisses most of the adverse consequences of a conviction, whether a misdemeanor or a felony. It erases the conviction from your criminal records, and you are not lawfully required to report it if your employer asks you about it.
You are eligible for expungement if you have completed probation and are:
- not serving a sentence,
- on probation, or
- presently charged with a crime.
You do not qualify for expungement if you served your sentence in state prison. However, there is an exemption if you would have served a sentence in county jail if you had violated the law after realignment.
Additionally, some felonies are never eligible for expungement, including the following:
- Murder
- Arson
- Assault with a deadly weapon that results in a serious injury
- Sodomy with a minor
- Lewd conduct with a minor
- Oral copulation with a child
- Statutory rape
Contacting a Seasoned Attorney Near Me
You have rights as an employee or job applicant as far as background checks are concerned. Numerous laws govern what an employer should do before and after obtaining your background report. For instance, your rights were violated if you had the background check performed but was not properly authorized or disclosed. The legal team at Darwish Law can fight for you and guide you through the complexities of the laws. We can also answer your questions. Please contact our Santa Ana office at 714-887-4810 to book your initial consultation.