Being arrested for a crime does not necessarily mean you will be convicted. Often we can help you get charges reduced or dismissed, and avoid jail and a criminal record.
A background check will usually reveal if someone has been convicted of a misdemeanor (for example, a DUI) or a felony (for example, rape). In terms of employment applications, while employers can receive information regarding a conviction, some states have ban the box laws that limit when and whether prior convictions can be considered in making hiring decisions.
Under California law, it is unlawful for an employer or company to gain access to information on an arrest that did not lead to a conviction (unless the arrest is pending). The same parties cannot receive information on any convictions that have been expunged or sealed.
A background check is when an employer or other company performs a screening of a person’s history. This background screening can disclose several items of information about a person. Some of these may include:
Note that there are some protections against California background checks. For example, state and federal laws prohibit California employers from discriminating against applicants on the basis of:
A background check may disclose several items of personal information. These include:
As to criminal history, California State laws say it is unlawful for an employer/ company to gain access to information on:
A background check is when a potential employer or other company obtains information about a person’s history. This includes gathering information about a person’s criminal history and criminal record (including jail time).
A background check is sometimes referred to as a “criminal background check” or an “employment background check.”
An employer or company can conduct an employment background check either:
If a company hires a third party, these background check companies are known as “investigative reporting agencies.”
Under California’s background check laws, a check can gather information from the following sources:
Once a company gathers information from these sources, it uses the information for help in:
AB 1008, California’s “ban the box” legislation, took effect January 1, 2018.
The law prohibits employers from inquiring into an applicant’s criminal history before making a conditional offer of employment.
Under this law, employers can no longer ask a question that was commonly found on most employment applications – “Have you ever been convicted of a felony?”
As part of the hiring process, these employers can ask about criminal convictions. But they can only do so after making a conditional offer of employment to a candidate.
A “conditional offer” means a job offer that is dependent on the employee meeting certain conditions. These conditions may include:
If an employer discovers past criminal convictions, the new law states that it cannot automatically exclude the applicant from employment. Rather, the employer is required to perform an individualized assessment of the applicant.8
This requires the employer to consider a number of factors to decide whether or not to hire an applicant. These factors include:
An employer can deny an applicant after conducting this assessment as long as it is based on business necessity. If it does, it must send the applicant a notice of this decision.10
The FCRA imposes two obligations on employers. These are that employers must:
The FCRA only applies to an employer if it hires a third party to conduct its background check. It does not apply to an employer that performs this check in-house.
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.
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