Among the most frequent inquiries clients have is, “Will my arrest or conviction appear on a background check for jobs or other purposes, such as a credit application?”
There is no central server where hiring managers or property owners may obtain all of an applicant’s criminal history details. Instead, a criminal background check involves the transference of an individual’s data (including former residences) to a third-party firm that does a background check for a charge. Many of these businesses provide low-cost, basic background checks, while some of the more costly ones may do a due diligence background check that may cover all states the applicant has resided in and federal records. The veracity of the facts in these documents varies.
Background Check Sources
What is the source of these background details? This varies with the extent of the background check. The data is gained from local court documents (often via a paid membership service that delivers this information to the background check provider) and federal criminal court records. The criminal background check is more exhaustive for jobs in critical industries, such as banking and finance.
Property owners wanting to rent or lease outhouses or condominiums may be particularly concerned if the applicant has been convicted of a serious crime or is a registered sexual offender. California has a public database of convicted sex offenders who are obliged to register. At the same time, the FBI maintains a national record of those convicted of severe sex crimes or sex offenses against minors. Legally, California landlords are prohibited from discriminating against prospective tenants with criminal or sexual offense records, but in reality, many do.
Can hiring managers and landlords lawfully use background investigation data? An employer in California is prohibited from inquiring about the interviewee’s criminal past before making a conditional offer of employment. However, the employer may review the applicant’s criminal history and can refuse to give a job or hire a person based on a criminal record. The individualized assessment considers the type of job and the duties to be handled by an individual. The nature and severity of the criminal offense or offenses and the age of the conviction are essential considerations. The legislation prohibits employers from considering offenses that do not lead to a sentence. On the applicant’s criminal record, a conviction dismissed (expunged) before the application may be present, but the employer cannot consider it. Employers in California are prohibited from considering crimes that did not lead to a conviction unless the case is still ongoing.
This statute prohibits discrimination in employment based on a criminal record. If an applicant is offered a conditional offer of employment dependent on a background check and subsequently refused employment, the employer must be able to articulate why the applicant does not meet the personalized assessment criteria owing to their criminal past.
Important exception: Applicants seeking jobs in local, state, or federal government agencies or jobs requiring state licensure are excluded from these precautions.
How can you Proceed?
If you have faced arrest or detention without any charges being filed, your record must be sealed. These records cannot be used for evaluating applications. They remain on file, and it is hard to tell whether a prospective employer or landlord considers them.
If you have been convicted of a crime, you may be able to have that conviction dismissed (often referred to as an “expungement,” although this is a misnomer since the conviction remains on your record, but as “dismissed”). If you were not sentenced to state prison, most misdemeanors and felonies are eligible for discharge.
Other forms of remedy, such as a petition for factual innocence, are less prevalent and more difficult to achieve.
If you seek clarity about the status of your criminal record or need assistance to set the record straight, then the Law Offices of Alex R. Hernandez Jr. will inform you of your legal rights and aggressively pursue justice so that you are not wrongly denied employment. We can clear your record to open up employment avenues for you.