Criminal Background Check in California – Key Things to Know

A background check is when an employer or other company performs a screening of your past misdemeanor and felony convictions, negative credit report information, education history, and other public data.

Background checks are lawful in California. However, employers are required to abide by several restrictions and obligations found in:

1. California’s ban the box law (“Fair Chance Act”),
2. the Los Angeles and San Francisco fair chance ordinances,
3. the Fair Credit Reporting Act (FCRA),
4. the California Information Privacy Act (CIPA), and
5. anti-discrimination laws.

When negative information shows up on your background check, you can try to clear this by means of:

1. expungements,
2. Certificates of Rehabilitation,
3. Governor’s pardons,
4. sealing juvenile records, and
5. petitions for a finding of factual innocence.

Our California criminal defense attorneys will answer the following key questions in this article:

• 1. What is a background check?
• 2. What information shows up on a background check?
• 3. Background Check Sources
• 4. Are background checks lawful in California?
• 5. How can I clear negative information from my records?
• 6. How can I check my criminal record in California?
• Additional Resources

1. What is a background check?

A background check is when an employer or other company obtains information about your history. This includes gathering information about your criminal history record.

An employer/company can conduct a criminal history background check either:

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

Oftentimes companies hire third parties – called “investigative reporting agencies – to run background checks.

2. 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 and felony offenses) dating back 7 years from the date of the check,
• negative information on a credit report,
• workers compensation information¹,
• schools that you attended (and the years of attendance),
• negative housing information such as prior evictions, and
• military information (such as dates of service, ranks held, assignments, and awards).

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

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

Example: Lisa is 35 years old. She was convicted of DUI, per Penal Code 23152b PC, when she was 22. She remained out of trouble until her 30’s when she was convicted of shoplifting, per Penal Code 459.5 PC.

Lisa is applying for a job, and her potential employer runs an employment background check on her. The employer cannot see the DUI conviction because it is older than seven years. It can, however, take into account her 459.5 PC conviction when making a hiring decision – unless Lisa was ultimately acquitted of the crime or had it expunged or sealed.

References

An employer or company may also speak with references when conducting a background check. These people typically include:

• past employers and job-related colleagues,
• friends and family members,
• neighbors,
• associates, or
• mentors/role models.

These persons will most often provide details on your:

• character,
• reputation,
• work-ethic,
• personality traits, and
• general attitude and behavior.

The 7-Year Rule in California

After employers in California make a conditional employment offer, they may order a criminal background check that goes back only seven years (with some exceptions).⁷

Therefore, employers cannot see convictions older than seven years and cannot pass you over based on seven-plus old convictions.⁸

3. Background Check Sources

A background check gathers the following information from both criminal and non-criminal justice sources, such as:

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

A background check does not have to collect information from all these sources. A check may just collect from a few of them.

Also, California law may place exemptions on the type of information that can be pulled from these sources. For example, Section 2 above lists limitations regarding criminal records.

As to medical history, California law imposes strict requirements that protect the confidentiality of your health information. Most employers can only gather information about your ability to perform specific job functions.

4. Are background checks lawful in California?

Background checks are generally lawful in California. However, California law imposes several restrictions/obligations on companies when performing them for employment purposes. Some of these are found in:

1. California’s ban-the-box law,
2. The Los Angeles and San Francisco fair chance ordinances,
3. The Fair Credit Reporting Act (FCRA),
4. The California Information Privacy Act (CIPA), and
5. Anti-discrimination laws.

We discuss each of these below.

1) California’s Ban-the-Box Law

California employers with five or more employees can ask you about your criminal history only after making a conditional offer of employment to you.⁹

If the employer discovers past criminal convictions, they cannot automatically disqualify you.¹⁰ Rather, the employer is required to perform an individualized assessment and consider such factors as:

• whether your conviction history has an adverse relationship with the specific job duties,
• 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.¹¹

An employer can deny you after conducting this assessment as long as it is based on business necessity. If it does, it must send you a notice of this preliminary decision.¹²

You have at least five business days to respond to this notice with evidence of rehabilitation and mitigating circumstances. Examples include you having performed community service and completed a rehab program.¹³

If a response is given, the employer must consider it. Upon this consideration, the employer can either:

1. hire you or
2. deny employment based on your criminal record information.¹⁴

2) The Los Angeles and San Francisco Fair Chance Ordinances

Los Angeles and San Francisco passed “fair chance” ordinances prior to the ban-the-box law. Like the ban-the-box law, they allow you provide employers with favorable evidence of you if they choose not to hire you based on your criminal history.

Since the ban the box law provides you greater protection, these cities have amended their ordinances and aligned them with the ban the box law.

3) The Fair Credit Reporting Act (FCRA)

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

1. get your written consent before it conducts a criminal background check on you and
2. provide notice to you if it denies employment because of information discovered in the check.

FCRA applies only to employers that use a third party to conduct its background check. FCRA does not apply to an employer that performs this check in-house.

4) The California Information Privacy Act (CIPA)

CIPA is a California statute that sets forth many of the same laws contained in the federal Fair Credit Reporting Act. For example, CIPA says that employers have to get your consent before conducting a criminal background check.

If an employer is doing a background check in-house, the employer must:

• give you an option to view a report of this check and
• provide you a copy of the report if you exercise this option.

5) Anti-Discrimination Laws

Federal and state laws prohibit California employers from discriminating against you on the basis of:

• race,
• ethnicity, and
• sexual orientation.

This means that California employers could get in trouble if they have a policy of denying employment to all applicants who have a criminal record.

The reason for this is that African Americans and Latinos have higher rates involving arrests and convictions than other races. This means a general policy of exclusion could appear discriminatory.

5. How can I clear negative information from my record?

There are several ways in California that you can try to clear negative information that may show up in a background check. These include:

1. Expungements,
2. Certificates of Rehabilitation,
3. Governor’s pardons,
4. Sealing juvenile records,
5. Petitions for a finding of factual innocence, and
6. Automatic record seals.

We discuss each of these below.

1) Expungements

An expungement releases you from the negative consequences of a misdemeanor or felony conviction.

The California laws on expungements are set forth in Penal Code 1203.4 PC. Expungements are also referred to as “dismissals.”

If you are convicted of a crime, you are entitled to an expungement if you:

1. successfully complete probation or
2. complete a jail term (whichever is relevant).

If you violate a probation term, you could still get the offense expunged. This, though, would be in the judge’s discretion.

If your conviction is expunged, then it does not need to be disclosed to potential employers. This holds true even if a conditional offer of employment is made.

2) Certificates of Rehabilitation

A Certificate of Rehabilitation (“COR”) is a California court order that says you have been rehabilitated following a criminal conviction.

The process and eligibility for obtaining a COR are set forth in Penal Code sections 4852.01 to 4852.21 PC.

In general, a COR is available if you were convicted of:

1. a felony and were sentenced to a state penal institution or agency, or
2. a felony and were sentenced to probation, and the conviction has been expunged, or
3. a misdemeanor sex offense listed in Penal Code 290 PC, and the conviction has been expunged.

You must also have:

• resided in California for at least five years and
• been rehabilitated (remained out of trouble) for an additional period of between two and five years following the release from custody, probation, or parole.

A Certificate of Rehabilitation does not remove a conviction. However, under the ban-the-box law, you can provide evidence of rehabilitation if an employer decides to deny you employment.

3) Governor’s Pardons

A California governor’s pardon is an honor granted to you if you have been rehabilitated. It relieves many of the penalties associated with a criminal conviction.

As stated above, it is unlawful for an employer/ company to gain access to information about a crime that has been pardoned.

Almost anyone convicted of a California crime can seek a pardon after a satisfactory period of rehabilitation. Depending on the crime, this period can be anywhere from seven to ten years.

There are three possible ways to get a California governor’s pardon:

1. file a Certificate of Rehabilitation from the superior court,
2. file an application directly with the governor’s office, or
3. receive a recommendation for a pardon from the California Board of Parole Hearings (if you are currently in prison).

4) Sealing Juvenile Records

Welfare and Institutions Code 781 WIC is the California statute that allows for the sealing of your juvenile records.

The “sealing” of these records means that the court closes your file. The documents in it then cease to exist, and they are no longer public records.

The end result is that any juvenile offenses will not show up on your background check. Also, you can say you do not have a criminal record.¹⁵

You can try to seal your juvenile records if all of the following are true:

1. you are 18 or older, or five years have passed since the jurisdiction of the juvenile court ended,
2. you have not been convicted of an offense involving moral turpitude as an adult, and
3. you have not been convicted in juvenile court, after turning 14, of certain serious offenses (like murder, torture, or robbery).¹⁶

5) Petitions for a Finding of Factual Innocence

Penal Code 851.8 PC is the California statute that allows you to bring a petition for a certificate of factual innocence following an arrest. A successful petition shows that there was no reasonable cause to believe that you committed an offense.¹⁷

If a petition is granted, the law enforcement agency having jurisdiction over the offense must seal your arrest records for three years. After this time, the records and the petition get destroyed.¹⁸

After the sealing of the records, they will not show up on your background check. Also, you can say that you do not have a criminal history.

You are eligible to file a petition when:

1. you have been detained by local or state police but not officially arrested for a crime,
2. you have been arrested for an offense, but not formally charged,
3. you were formally charged with a crime, but the charges were later dropped, or
4. you were formally charged with a crime and tried for that crime, but there was no criminal conviction.

6) Automatic Record Seals

As of July 1, 2023 with the passage of Senate Bill 731 and Assembly Bill 1076 – The Clean Slate Act, most arrest and conviction records will get automatically cleared through a process called “automatic relief.”

• Misdemeanor arrests will be sealed after one year if there are no charges, and felony arrests will be sealed after three years if there are no charges.
• Charges that get dismissed should be cleared right away.
• Convictions of cases where the judge granted probation should be cleared once the case closes.
• Otherwise, misdemeanors convictions should be cleared one year after the case ends, while felony convictions should be cleared four years after the case ends. (This does not apply to serious, violent, or sex offender felonies.)

6. How can I check my criminal record in California?

If you are a California resident, you can order your criminal record by:

• completing a BCIA 8016RR form,
• getting fingerprinted at one of these Live Scan locations, and
• paying a $25 fee to the California Department of Justice.

If you are a non-California resident, you can order your criminal record by:

• completing a BCIA 8705 form,
• getting fingerprinted (the fingerprint card must show your full name, date of birth, sex and return mailing address),
• making a $25 personal check, certified check, or money order to the California Department of Justice, and
• mailing the above documents to the California Department of Justice, Bureau of Criminal Identification and Analysis, Record Review & Challenge Section, PO BOX 160207, Sacramento, CA 95816-0207.¹⁹

Additional Resources

For ways to search your own records, refer to these helpful sites:

• California Attorney General: Public Records – Information about the Public Records Act.
• California Attorney General: Fingerprint Background Checks – Information about California’s statewide criminal record repository .
• FBI Identity History Summary Checks – The FBI provides identity history summary checks/background checks. You can learn about requesting them here.
• BackgroundChecks.org – A consumer reporting agency with articles/resources on disputing inaccurate background check information.
• California Courts – Access to electronic case records.

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