Will I Pass a Background Check with a Misdemeanor?

Posted on September 17, 2021

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:

• a person’s criminal history information (including criminal convictions),
• negative information on a credit report, and
• schools that a person attended (and the dates of attendance).

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:

• race,
• gender,
• age,
• religion,
• ethnicity, and
• sexual orientation.

What information shows up on a background check?

A background check may disclose several items of personal information. These include:

• past criminal convictions (for both misdemeanor convictions and felony convictions) dating back 7 years (not 10 years) from the date of the check,
• negative information on a credit report,
• workers compensation information,¹
• schools that a person attended (and the years of attendance),
• negative housing information such as prior evictions, and
• military information (for example, dates of service, ranks held, assignments, and awards).

As to criminal history, California State laws say it is unlawful for an employer/ company to gain access to information on:

• an arrest that did not lead to a conviction (unless the arrest is pending),
• a conviction dated more than seven years from the date of the check,²
• a conviction for which the person checked received a pardon,³
• an arrest leading to the completion of a successful diversion program,⁴
• expungements and sealed convictions (for both misdemeanor charges and felony charges),⁵ and
• certain marijuana offenses.⁶

What is a background check?

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:

• on its own, or
• by hiring a third party.

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:

• arrest records (for criminal offenses and criminal charges) and court records,
• credit reports from consumer reporting agencies,
• worker compensation records,
• references,
• education and public records,
• check writing history,
• tenant history,
• DMV driving records and vehicle registration records,
• immigration records,
• insurance claims reports,
• sex offender lists,
• social security records, and
• state licensing records.

Once a company gathers information from these sources, it uses the information for help in:

• reviewing job applications,
• hiring decisions and the hiring process, and
• filling open positions.

What is California’s Ban the Box Law?

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:

• passing a background check, and
• a review of the applicant’s criminal convictions (if applicable).⁷

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:

• the nature and gravity of the offense or conduct,
• the time that has passed since the offense or completion of the sentence, and
• the nature of the job held or sought.⁹

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

What is the Fair Credit Reporting Act (FCRA)?

The FCRA imposes two obligations on employers. These are that employers must:

• get an applicant’s written consent before it conducts a criminal background check on him/her, and
• provide notice to the applicant if it denies employment because of information discovered in the check.

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.

About the Author

Neil Shouse

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.