Criminal Background Check in California – Key Things to Know

A background check is when an employer or other company performs a screening of a person’s history. This includes information about a person’s criminal history.

A criminal background check, for example, will generally tell if someone has been arrested for a:

• misdemeanor, or
• felony.

A background check can disclose several items of information about a person. Some of these may include:

• past criminal convictions (with exceptions),
• negative information on a credit report, and
• schools that a person attended (and the dates of attendance).

A background check may gather information from several different sources. Some of these are:

• criminal/arrest records,
• workers compensation records, and
• DMV driving/vehicle registration records.

Background checks are legal in California. However, California law imposes several restrictions and obligations on employers when performing them. Some of these are 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.

Negative information may show up on a background check. A person 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?
  • 2.1. How far back does a criminal background check go in California?
  • 2.2. What is the California 7 year rule?
• 3. What sources of personal information does a background check pull from?
• 4. Are background checks legal in California?
  • 4.1. California’s ban the box law
  • 4.2. The Los Angeles and San Francisco fair chance ordinances
  • 4.3. The Fair Credit Reporting Act (FCRA)
  • 4.4. The California Information Privacy Act (CIPA)
  • 4.5. Anti-discrimination laws
• 5. How can a person clear negative information from his records?
  • 5.1. Expungements
  • 5.2. Certificates of Rehabilitation
  • 5.3. Governor’s pardons
  • 5.4. Sealing juvenile records
  • 5.5. Petitions for a finding of factual innocence
• 6. How can I check my criminal record in California?

1. What is a background check?

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

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

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

If an employer performs its own criminal history record check, note that it:

• might be quite thorough, or
• performed with less detail.

If a company hires a third party, this entity is known as an “investigative reporting agency.” These agencies are in the business of:

• searching,
• compiling, and
• selling

information about people.

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 a person 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 the person checked 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 PC 459.5 conviction when making a hiring decision – unless Lisa was ultimately acquitted of the crime or had it expunged or sealed.

Note that an employer or company may also speak with references when conducting a background check. These people may 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 an applicant’s:

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

2.1 How far back does a criminal background check go in California?

In California, employment background checks go back for the prior seven years.⁷

2.2 What is the California 7 year rule?

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).

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

3. What sources of personal information does a background check pull from?

A background check will gather the following information from both criminal justice agencies and non-criminal justice agencies:

• 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, listed in Section 2 above are limitations regarding criminal records.

As to medical history, California law imposes strict requirements that protect the confidentiality of a person’s medical information. Most employers can only gather information about an applicant’s ability to perform specific job functions.

4. Are background checks legal in California?

Background checks are generally legal 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.

4.1. 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 a candidate’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 questions – “Have you ever been convicted of a felony?”

The law applies to private employers with 5 or more employees.

As part of the hiring process, these employers can ask about criminal convictions. But only after making a conditional offer of employment to a candidate. This is a job offer that is dependent on the employee meeting certain conditions. These conditions may include:

• passing a background screening, and
• a review of the applicant’s criminal convictions (if applicable).⁹

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.¹⁰

This requires the employer to consider a number of factors to decide whether or not to hire an applicant. Some of these factors include:

• whether the applicant’s 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 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 preliminary decision.¹²

An applicant has at least five business days to respond to this notice with evidence of rehabilitation and mitigating circumstances. Examples include that applicant performed community service and completed a rehab programs.¹³

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

1. hire the applicant, or
2. deny employment based on the applicant’s criminal record information.¹⁴

4.2. 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. They provide protections quite similar to this law.

They offer a “fair chance” because:

• if an employer decides to deny employment (take an “adverse action”) based upon an applicant’s criminal history,
• the applicant can provide evidence of why employment is still justified.

Since the ban the box law provides applicants greater protection, these cities have:

1. amended their ordinances, and
2. aligned them with the ban the box law.

4.3. The Fair Credit Reporting Act (FCRA)

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

1. get an applicant’s written consent before it conducts a criminal background check on him, and
2. 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.

4.4. 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, the statute says that employers have to get the consent of an applicant before conducting a criminal background check.

If an employer is doing a background check in-house, then the law says:

• the employer must give the applicant an option to view a report of this check, and
• provide the applicant a copy of the report if he exercises this option.

4.5. Anti-discrimination laws

Federal and state laws prohibit California employers from discriminating against applicants 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 a person clear negative information from his records?

There are several ways that a person 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, and
5. Petitions for a finding of factual innocence.

5.1. Expungements

An expungement releases an individual from the negative consequences of a conviction.

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

A person convicted of a crime is entitled to an expungement if he:

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

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

If a 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.

Expungements are available for both:

• California misdemeanors, and
• felony offenses.

5.2. Certificates of Rehabilitation

A Certificate of Rehabilitation (“COR”) in California is a:

• court order that says,
• someone has been rehabilitated following a criminal conviction.

The process and eligibility for obtaining a Certificate of Rehabilitation are set forth in Penal Code sections 4852.01 – 4852.21 PC.

In general, a certificate is available to people who were convicted of:

1. a felony and were sentenced to a California 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.

They must also have:

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

“Rehabilitation” means a person has remained out of trouble.

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

5.3. Governor’s Pardons

A California governor’s pardon is an honor granted to people who 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 (for people currently in prison).

5.4. Sealing juvenile records

Welfare and Institutions Code 781 WIC is the California statute that allows for the sealing of a person’s juvenile records.

The “sealing” of these records means that the court closes a person’s file. The documents in it then cease to exist. They are no longer public records.

The end result is that any juvenile offenses will not show up on a background check. Also, an applicant can say he does not have a criminal record.¹⁵

A person can try to seal his juvenile records if all of the following are true:

1. he is18 or older, or five years have passed since the jurisdiction of the juvenile court ended,
2. he has not been convicted of an offense involving moral turpitude as an adult, and
3. he has not been convicted in juvenile court, after turning 14, of certain serious offenses (like murder, torture, or robbery).¹⁶

5.5. Petitions for a finding of factual innocence

Penal Code 851.8 PC is the California statute that allows a person to bring a petition for a certificate of factual innocence.

A party files this petition following an arrest. A successful petition shows that there was no reasonable cause to believe that the person arrested committed an offense.¹⁷

If a petition is granted, the law enforcement agency having jurisdiction over the offense must seal a party’s 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 a background check. Also, an applicant can say that he does not have a criminal history.

A person is eligible to file a petition when:

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

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

California residents can order their 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

Non-California residents can order their criminal record by:

• completing a BCIA 8705 form,
• getting fingerprinted (the fingerprint card must show the person’s 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 95816-0207¹⁹

For additional help…

For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group. We fight felony, misdemeanor, and infraction charges.

We have law offices statewide, and we fight charges on the local, state, and federal levels. If your legal needs fall outside our practice areas, we can offer referrals.

For a discussion of similar issues under Nevada law, please see our articles on criminal background checks in Nevada, Will I pass a background check with a misdemeanor?, and “Do I need to disclose an arrest or conviction on a job application in Nevada?”

Note that California residents can get a copy of their own conviction history report from the California Department of Justice (California DOJ) to check for inaccuracies. It would require submitting a Live Scan fingerprinting form. Learn more here. Also learn about Identity History Summary Checks at FBI.gov.

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