Individuals conduct criminal record checks to understand your past and its relationship to your current situation. Property managers, potential employers, and organizations run background checks on prospective candidates to obtain information about their lives, such as criminal records, which they would prefer remain secret. If you have been previously charged with or found guilty of a crime, you may worry that it will appear on background checks, negatively impacting your chances of securing a job or an apartment lease. Here is what you should know about criminal record check procedures and what to expect.

Understanding Criminal Record Checks

A criminal background or record check is a process by which an individual or entity obtains details of an individual's criminal record, such as prior misdemeanor or felony offenses or convictions, negative credit report details, or education records. The procedure also reveals secrets, such as previous arrests or active criminal charges. Parties commonly conducting these checks include learning institutions, landlords, employers, and third parties performing checks on behalf of clients.

The phrase “criminal record or background check" is broad, and there are several levels of your criminal record to examine, contingent on the party performing the check. After an arrest or law enforcement investigation, the parties examining your records request a rap sheet from the Federal Bureau of Investigation (FBI) or the Department of Justice (DOJ).

The list contains all the details of your criminal record, including the number of arrests and the outcomes of those arrests. Your rap sheet is only available to government agencies. A prospective property manager, school, or employer cannot access it. Additionally, disclosing the list to unauthorized individuals can attract misdemeanor charges. If you want to know what is in your rap sheet, you can request a copy from the DOJ for review to ensure its details are accurate.

A record check can alter your future opportunities. If you have a criminal conviction, it is crucial to conduct a background check to know what it says about your past. Your past mistakes do not have to follow you into the future. You can partner with a criminal defense lawyer to prevent a conviction or file for an expunction so you can leave your mistakes behind and start afresh.

The Legal Nature of Criminal Record Checks

It is legal to conduct a criminal background check in California. However, businesses and employers must obey certain legal restrictions and obligations found in the following statutes:

Ban-the-Box Law

Also known as the Fair Chance Act, the ban-the-box statute applies to prospective employers with at least 5 employees. As per the Act, an employer can run a background check on you, but they can only study your criminal record after making a conditional job offer, meaning you can only secure the job if you pass the background check review. So, even when a prospective employer comes across your criminal record, they cannot use the details to disqualify you automatically. Instead, the law requires the company to conduct an individualized assessment to determine your suitability for the position. During the assessment, the potential employer considers:

  • Whether the prior conviction has a substantial relationship to the performance of specific job duties

  • The nature and severity of the crime or conduct

  • The time that has passed since the conviction or completion of your sentence

  • The kind of job you seek or hold

The employer can disregard your application after the assessment if doing so is necessary to protect business interests. If they deny you the opportunity, they must notify you of the preliminary decision and give you the chance to challenge their decision. Once you receive the notice, you should contact your attorney immediately to review it together and submit a response within at least five working days. In your answer, you should provide proof of rehabilitation and mitigating circumstances to convince the employer to hire you. After reviewing the response, the employer can decide to hire you or disregard your application based on your criminal past.

A prospective employer subverts the condition of making a job offer before examining a criminal record when they deny you a job opportunity solely based on your criminal record. If an employer does this, you can sue them for discrimination.

Property managers and schools also must assess your circumstances before disregarding your application because of a criminal background. If they choose to deny you the lease contract or opening in the learning institution after assessment, they must furnish you with a report of your criminal background, informing you that the conviction was the reason for disqualification.

Anti-Discrimination Statutes

State and federal statutes forbid recruiters from discriminating against job applicants based on their race, sexual orientation, or ethnicity. So, it is illegal for a prospective employer to be biased against job applicants with criminal records. The reason is that African Americans and Latinos have the highest arrest and conviction rates in the state. Therefore, excluding someone from a job they are qualified for because of a criminal past amounts to discrimination.

The California Information Privacy Act (CIPA)

CIPA requires prospective employers to obtain job applicants' consent before conducting criminal record checks. If the employer is not hiring a third party for the check, they should grant you the check to scrutinize the report from the check and give you a copy of the report if you opt to examine it.

The Fair Credit Reporting Act (FCRA)

Under FCRA, an employer should obtain your written approval before running a criminal record check and furnish you with a notice of the decision to deny you the job because of your criminal past discovered in the check. The Act applies only to employers or companies that rely on third parties for criminal background information.

Information Revealed in Criminal History Checks

Many of the personal details you would love to keep secret are revealed in criminal history checks. These details include:

  • Felony convictions in the last seven years

  • Workers' compensation details

  • Misdemeanor convictions in the last seven years

  • Your education history, including the schools you attended and the years

  • Negative housing details, such as previous evictions

  • Military details, including rank, service dates, assignments, and awards

Criminal Details that Will not Appear on Your Record During a Background Check

Typically, employers should conduct background checks after a conditional job offer. However, the criminal records to be checked should not date back more than seven years. Any criminal background information dating more than seven years ago will not appear on your record. Additionally, expunged convictions, pardons, or diversion programs resulting in case dismissal will not appear on the check.

Other details that will not appear on your record and that employers or individuals are prohibited from accessing include the following:

  • Arrests that did not result in a conviction, unless the arrest is still pending

  • A conviction dating back more than seven years

  • A pardoned conviction

  • An arrest resulting in a successful participation in a diversion program

  • An expunged or sealed conviction

  • Your juvenile delinquency records

  • Particular misdemeanor marijuana convictions over twenty-four months old

When you are arrested for suspected domestic violence, but the prosecutor fails to file criminal charges, the property manager, landlord, or company should not access these records during criminal record checks.

Furthermore, when you are convicted of a DUI offense after an arrest where the Blood Alcohol Concentration (BAC) exceeded the designated limit, you can request an expunction after completing probation. After expungement, the conviction will appear in your record as dismissed and will not appear in criminal record checks. However, the police will still have access to the dismissed conviction. So, if you are arrested for a second DUI within 10 years, it will count as a second violation, even after expunging the first one.

Even though employers are limited in their access to these details, there are a few exceptions. For example, healthcare employers can ask prospective workers about sex crimes that the law prohibits them from accessing during background checks if the position they seek to fill entails working with vulnerable patients. Also, when an employer or business deals with drugs, the law permits prospective employers to dig deeper into drug crimes that the potential candidates might have committed in the past, which could compromise their capacity to perform duties.

Additionally, employers can rely on references to obtain information about your character, reputation, general conduct and attitude, work ethic, and personality traits. These references include:

  • Former employees or colleagues

  • Neighbors

  • Family members

  • Role models

  • Friends

  • Associates

Sources of Criminal Record Check Information

Parties or organizations conducting criminal record checks gather their information from the following sources:

  • Tenant history

  • Workers’ comp records

  • Megan’s Law website for sex offender registration

  • Immigration records

  • References

  • Education history

  • DMV records

  • Social security records

  • Check writing records

  • Insurance claim reports

  • Credit reports

  • State licensing authorities

A check does not have to refer to all these sources. It can gather information from a few sources. Additionally, the law limits the criminal background information that can be accessed during the checks.

When it comes to collecting information on an applicant’s ability to perform a job, medical records confidentiality can bar someone from accessing your medical records that hold the relevant information they seek.

Reasons You Should Check Your Criminal Record

Other parties, such as employers, third parties, and individuals running criminal background checks on you, seek information that could adversely impact your future opportunities. For example, an employer could use your criminal record as a basis for denying you a job you are qualified for. Fortunately, if you understand your criminal record, you can submit evidence of rehabilitation, mitigating factors, or proof that the records are erroneous to clarify your situation to the parties involved.

Similarly, familiarizing yourself with your criminal record can help you better answer the questions regarding it. Sometimes, your record may contain details you are not familiar with, and giving the wrong answer to them could make you look dishonest and discredit you. However, when you have the information, you can answer all questions honestly, making you look credible before the employer or landlord, even with a criminal history.

Criminal records are not without mistakes. So, requesting the records to study them helps identify incorrect or outdated information that could have been displayed to prospective employers during the background checks, hurting your chances of securing a job. Unless you can access these records and correct the mistakes or update outdated records, you might unfairly miss out on an opportunity you are qualified for.

California statutes allow eligible candidates to file for expungement or to seek a reduction of a felony charge to a misdemeanor. If your record is expunged, private organizations or individuals cannot access it during background checks. Checking the records helps you determine eligibility for an expunction and whether your felony offense can be reduced to a misdemeanor to make you eligible for expunction. If the court grants an expungement, you are released from all the disabilities of a criminal conviction, including the obligation to disclose a conviction to an employer during a job application or to a landlord when seeking a lease.

The Duration of a Criminal Background Check

If you are considering running a background check to understand your criminal record, it is worth knowing how long the search takes. The duration of the search varies based on the information source, whether the court records are digitized, and the type of database you are searching. Many county courts use manual records, which can take up to a month to search.

Obtaining a Clean Slate from a Criminal Record

You should not let your criminal record hurt your future. A conviction makes it difficult to secure employment, lease your dream apartment, or enroll in school. Fortunately, there are several avenues you can explore to release yourself from the collateral consequences and disabilities of a criminal record. These include:

  1. Expungements or Dismissal

An expungement or dismissal is the court setting aside a conviction after it has occurred. Once a dismissal happens, the court releases you from all the consequences of a guilty verdict. An expungement does not delete the conviction from your record. However, those who run background checks will see the record as having been dismissed.

The only parties with access to expunged criminal convictions are public employers and private employers dealing with hospitals, children, and the elderly. Nevertheless, even though these parties can access the records, they appear as dismissed rather than as convictions. Therefore, they cannot use the record against you or ask about your record until they make a conditional job offer.

If you want to expunge your record to enjoy the relief of a conviction dismissal, talk to your expungement attorney to understand the eligibility and application process. To file for an expunction, you must complete probation or serve a jail sentence, if applicable in your case.

A violation of probationary terms does not completely bar you from expunction. The judge has the discretion to allow you to dismiss the record.

  1. A Certificate of Rehabilitation (COR)

A COR is an order from a California court stating you have been rehabilitated after a guilty verdict. You qualify for a rehabilitation certificate if:

  • You have been found guilty of a felony violation and sentenced to a state prison

  • You have been found guilty of a felony offense, sentenced to formal probation, and had your conviction dismissed or expunged.

  • You have been found guilty of a misdemeanor sex offense outlined pursuant to PEN 290, and have successfully expunged the conviction.

  • You have been residing in California for at least 60 months

  • You have not committed another crime for an additional twenty-four or sixty months after completing your confinement period, probation, or parole.

A COR does not delete your conviction record. Nevertheless, you can submit the certificate as proof of rehabilitation when responding to the preliminary decision notice from the employer.

  1. Governor’s Pardon

California law prohibits access to pardoned criminal convictions. The pardon is granted to individuals who are fully rehabilitated. You should wait 7 to 10 years before applying. If you have obtained a rehabilitation certificate from the court, the COR acts as an application for a pardon.

If you do not have a COR but satisfy the requisite rehabilitation duration, you must submit an application directly to the governor’s office.

The other option for you to obtain a conviction pardon is a recommendation from the California Board of Parole Hearings if you are still serving your prison sentence.

  1. Sealing Juvenile Records

California Welfare and Institutions Code (WIC) 781 allows delinquents to seal or close their juvenile records. When you seal your records, it means they stop existing and are unavailable to the public.

If you seal your juvenile records, you obtain a fresh start from the mistakes you made when you were a minor. The records do not appear during background checks, and you can confidently say you have no criminal record without being dishonest.

To seal your juvenile records, you must be at least 18 years old, or 60 months must have passed since the court wardship ended. Another condition is that your sustained petition must not have been for a crime of moral turpitude. You must not have a sustained petition in the juvenile court after turning 14 for severe delinquent acts, such as robbery, homicide, or torture.

Find a Competent Post-Conviction Relief Lawyer Near Me

A criminal record can have adverse effects on your future even after serving your sentence. Nevertheless, depending on your situation, this should not be the case. With the help of a competent post-conviction relief lawyer, you can run a criminal record check to understand your record and find ways to use the information to benefit your life post-rehabilitation.

At the California Criminal Lawyer Group in San Jose, we will explain how criminal record checks work, complete your check, and assess your eligibility for expungement to give you a clean slate. Call us at 408-622-0204 to discuss criminal history checks further.