Job Application Rights with a Criminal Record
Are you applying for a job with a criminal record and want to know your rights? Read below for the protections California and federal law provide for job applicants and employees.
What will my employer see when I apply for a job and there is a background check?
What an employer sees on a background check really depends upon what type of job you are applying for. As an example, you are applying for a job as an administrative assistant at a shipping company. The job application should first ask whether you consent to a background check (which you will probably need to do to be considered for the position). The company will then contract with a private background check company to find your criminal background. This would be considered a commercial background check.
Commercial background check companies are not allowed to report convictions dismissed under Penal Code section 1203.4 (expungements), arrests that did not lead to conviction (unless the case is still pending), and criminal convictions more than seven years old. (Cal. Civil Code § 1785.13.) If an employer plans to deny employment because of a criminal background check, the employer is supposed to provide you with a copy of the background check beforehand so that you can contest its accuracy. (Fair Credit Reporting Act.)
The seven-year rule does not apply to some criminal convictions. The common exceptions include jobs in law enforcement, education, childcare, elderly care, phone companies, finance, alarm companies, pharmacists and private investigators.
Government jobs, or jobs dealing with sensitive groups or information, are different. You will know that you are subject to a government background check because you are working in a sensitive position, like education of children, a state agency, or nursing, and you are required to have your fingerprints taken. The extent of government background checks vary greatly by the type of job one is applying for. Some low-level jobs do not report arrests or convictions unrelated to the job, other high-level jobs report every arrest and conviction in a person's life, including cases dismissed under Penal Code section 1203.4. Each government fingerprint background check has different criteria based on the sensitivity of the position.
The revised California Fair Chance Act provides additional rules for employers. Under this law, employers cannot look into or consider criminal history under after making a conditional offer of employment, even if the applicant voluntarily discloses the criminal history. An applicant’s failure to reveal criminal history before the conditional offer cannot be used in a hiring decision. Job advertisements telling potential applicants who have a criminal record not to apply are prohibited. Once the conditional offer is made, and the employer learns of criminal history, the employer must make an individualized assessment of all the relevant factors of the conduct, like age, harm, context, and drug addiction - and this assessment should be documented in some form. Finally, if an an employer intends to make an adverse decision based on a criminal record, the employer must provide an opportunity for the applicant to respond why the criminal history should not rescind the offer. at least five days in advance of a formal decision to rescind an offer. The law office of David Reagan can help applicant’s respond in these situations with a mitigation statement about the criminal history. Failure to follow the Fair Chance Act rules and several other related laws can result in lawsuits against employers.
Regardless of the type of job, one way to be sure that everything is correct in the Department of Justice database is to request your own record. The instructions are found at the Department of Justice website. If there is an error, a form is provided to notify the DOJ of the need for correction.
