An employment background check analyzes your essential information, such as employment history, education, professional licenses, and criminal history, to determine your qualification for the job position. Employers conduct background checks to assess potential risks by reviewing past conduct or criminal records that could raise safety concerns for the public, clients, and workers, thereby creating a safe work environment. It also ensures that every candidate is assessed consistently, thereby reducing the possibility of bias when making hiring decisions. However, there are laws on employers' use of arrest and conviction records.

Ban the Box Law

This law applies to private companies in California with more than five employees. The law prohibits companies from inquiring about a candidate's criminal record before making a conditional job offer. However, there are exemptions, including the following:

  • A job position in which the law requires a California state authority to perform a background check for a conviction
  • Farm labor contractors
  • A position in which the law requires an employer to limit employment contingent on your criminal history
  • Specific positions at healthcare facilities

Additionally, companies can inquire about your criminal conviction once they have made a conditional employment offer. 

Companies should not consider any criminal records that did not lead to convictions when making a hiring decision. It includes the following:

  • Juvenile records
  • Engagement in pretrial diversion programs
  • Dismissed, sealed, or expunged conviction
  • Arrests that did not lead to convictions unless the criminal case is pending

A conditional employment offer is an offer that requires you to satisfy conditions that include a check of your convictions and a background check. While a company can ask about your convictions after making the conditional job offer, the firm cannot exclude you due to the sentence. Instead, if the company plans to reject your application based on your criminal history, it should conduct your individualized assessment. During the individualized assessment, the employer should consider the following factors when deciding whether to employ you or not:

  • Whether your criminal history is related to your job responsibilities
  • The severity and nature of your alleged crime
  • The nature of the position you are seeing
  • The time that has elapsed since you committed the crime and the completion of your sentence 

If the company denies you employment due to your conviction history after conducting an individualized assessment, the employer should provide you with a written notification. Below is what the written notification should include:

  • Notice of your disqualifying conviction is the ground for the preliminary decision to deny you the offer
  • Copies of your conviction history report
  • A description of your entitlement to respond to the notice of the company's decision before the responding decision and the decision becomes final.

Please note that a conviction older than seven years does not appear in criminal background checks, and a firm cannot disqualify you based on it.

Fair Credit Reporting Act

The FCRA seeks to safeguard both employers and potential candidates. It promotes the privacy, fairness, and accuracy of details in the consumer reporting authorities' (CRA) files. The law applies when your potential employer seeks to use background searches prepared by a third-party provider.

Here is an overview of your rights under FCRA:

  • Any person who uses consumer reports to refuse your employment application should notify you and provide you with the name, phone number, and address of the CRA that gave them the details.
  • You can request and acquire details about yourself in your files with the CRA. You have the right to a disclosure if anyone has taken a negative action against you due to your credit report or if you are unemployed but anticipate applying for jobs within sixty days, free of charge.
  • You are entitled to dispute inaccurate or incomplete details. If you find incorrect or incomplete data in your file, you can report it to the CRA agency, which will investigate the matter unless the dispute is minor.
  • CRAs should delete or correct unverifiable, incomplete, or inaccurate information within thirty days. Nevertheless, the agency can continue reporting details it has confirmed as correct.
  • A CRA should not report any negative details that are older than seven (7) years.
  • A CRA should give information about you to individuals with a valid need. The FCRA outlines people with a valid need for access.
  • A CRA should not divulge details about you to a potential employer or employer without your permission granted to the firm.

Consumer Credit Reporting Agencies Act

The CCRAA is a law that offers additional protection for California consumers above what is offered in the FCRA. It aims to put in place what is permitted to be included in credit reports. Additionally, it ensures that CRA manages consumer details correctly and legally, including ensuring it reports accurate data. It also provides legal recourse for individuals who have incorrect information on their credit reports.

The CCRAA provides you with the following rights:

  • You are entitled to access to your credit report once a year from all major credit bureaus, free of charge
  • You are entitled to accurate details on your credit statement, including the ability to dispute inaccurate information. Since every credit bureau might have varying details, check all of them. Document your interactions with each bureau in writing. If the matter is not resolved, consider filing a complaint. 
  • You have a right to privacy unless you grant express consent; no entity can look at your credit reports unless you grant them consent.

If you suffered damages due to the misuse of your credit reporting details or if any of your rights have been violated, you might have grounds for taking legal action. Consulting an attorney can help you determine whether the violation happened and guide you accordingly.

While this law primarily applies to CRAs, it also applies to any person who provides or uses credit information for commercial purposes. It could be a company performing a background check or a California consumer with credit reports.

You need to know who is included in the CCRAA, as many people mistakenly believe it is only the CRAs. The reality is that most companies with access to your credit details use them to make key decisions about your financial status. If any entity breaches your right in any way, for instance, if your potential employer accesses your credit report without your permission, you can take legal action against them.

Expungement under PC 1203.4

Expungement releases you from repercussions related to your criminal conviction. Once the court expunges your conviction, you can truthfully answer on your employment application that you have never been found guilty of a crime.

You qualify for expungement if you did not serve time in state prison, irrespective of whether you were found guilty of a felony or misdemeanor. If the judge grants probation, you must satisfy the terms of your probation until the court discharges you to qualify for an expungement. 

Some of the felonies that are not eligible for expungement include the following:

  • Murder
  • Sex offenses involving children, like statutory rape, sodomy with a minor, oral copulation with a child, and lewd conduct with a minor
  • Serious violent offense

Los Angeles County Fair Chance Ordinance

The law became effective in 2024. It applies to public and private companies operating businesses within unincorporated locations of Los Angeles County, with at least five workers working over 2 hours in the county's unincorporated area weekly.

Since a consumer reporting agency (CRA) cannot know if a company has a worker working more than two hours weekly in an unincorporated area, adhering to this law is the company's responsibility, not the CRA's.

A CRA cannot report any of the below:

  • An arrest that did not result in a conviction, unless your case is pending
  • A dismissed case
  • Expunged or sealed conviction
  • Juvenile records
  • A conviction for a decriminalized offense
  • A misdemeanor marijuana conviction that extends beyond two (2) years

The CRAs are prohibited from reporting convictions that are seven years old or older, regardless of the duration of confinement. Nonetheless, the lookback rule does not apply to job positions that involve providing care to vulnerable individuals, such as seniors, dependent minors and adults. Another exemption applies to job positions that involve the management of public money or benefits. The exemption is restricted to reporting convictions for fraud, forgery, bribery, unauthorized use of funds, handling stolen property, robbery, theft, and embezzlement.

The county's Fair Chance Ordinance requires employers to adhere to the following rules:

  • They should not ask you questions about your criminal record before interviewing you
  • The employer should not consider any criminal record information you offer
  • The employer should not conduct a criminal screening before making a conditional job offer
  • The company should provide you with a special notice before acquiring your criminal background check.
  • The company should complete a personalized evaluation with specific timelines based on your response.

The special notification should indicate the following:

  • Your job offer is dependent on the employer's analysis of your criminal history
  • The details of your background screening
  • The employment requirements
  • A good cause for performing the background check (for instance, the job position may pose a risk of harm, harassment, or safety to the firm, its clients, the public, contractors, or vendors).

The law requires companies that wish to perform background checks to indicate this in their employment advertisements clearly. The company should highlight these crimes in its published job advertisements if the law requires background checks for specific offenses.

Written Assessment Rules

An employer who does not want to employ you based on your criminal record should complete an evaluation and give you a copy. The assessment should be related and specific to at least one of your position's requirements. 

If you provide proof of rehabilitation, the company should complete another assessment. Here are the timelines firms should offer applicants after submitting rehabilitation or mitigating proof: 

  • Five days after the applicant receives the pre-adverse action notification
  • Ten more days to offer proof of rehabilitation or mitigating factors.

Penalties for Violating the Law

Companies that violate this law risk facing the following potential penalties:

  • $5,000 per offended worker for the first breach
  • $10,000 per offended worker for subsequent breach(es
  • Business revocation or suspension after committing a severe breach

Investigative Consumer Reporting Agencies Act

The Investigative Consumer Reporting Agencies Act aims to promote openness and fairness in consumer reporting. The reports are more comprehensive than simple credit checks and include information about your conduct, reputation, and lifestyle.  

One of the provisions of this act is that if your potential employer takes adverse actions based on your report, they should give you information about the report and the CRA that prepared it. It gives you understanding and protection.

Another provision is the requirement for consent and notice. Before making any investigative consumer report, CRAs should have your authorization. The provision helps prevent misuse and promotes the accurate use of sensitive information in employment decisions.

The law has strict regulations for investigative CRAs to secure your information during background checks. It ensures that nobody can access details about your lifestyle and personal characteristics without your knowledge.

The law also permits you to manage your data. You can request copies of reports, correct mistakes, and receive full disclosure. In other words, the law ensures your sensitive data is handled with care.

Per this law, investigative CRAs cannot report an arrest or conviction that did not result in a judgment if there is no suspicion of wrongdoing. It protects you from discrimination based on established claims. 

Your employer should only consider public records permitted by the law. For example, they should not consider reports of convictions older than seven years unless the government allows. It ensures fairness regardless of previous legal issues.

Moreover, sealed arrests, expunged convictions, and charges that the prosecutor did not file cannot be used against you.  

Find Seasoned and Knowledgeable Legal Assistance Near Me

While companies can conduct background checks on job applicants and employees, there are regulations governing how and when these checks can be performed. If you have questions about employer use of arrest and criminal records or rights after being denied employment due to your previous criminal history, the Law Office of Sara L. Caplan would be glad to help. We can review your case and fight aggressively for you until your employer or potential employer upholds your rights. Please contact our Los Angeles office at 310-550-5877 to schedule your free case review.