Accessing Criminal Records
In California, it is legal for private and public employers to conduct inquiries about an applicant’s criminal history as part of the pre-employment background screening process; this includes reviewing conviction records. NCS makes reading reports easy. Our criminal background checks report convictions and serious pending cases that belong to your applicant.
Employers are prohibited from asking about or considering arrest records that have been expunged, pertain to charges that have been dropped or dismissed or did not lead to conviction may not access sealed records, or require applicants to disclose details regarding arrests or convictions that were expunged from their criminal record. In fact, employers are required to specifically inform applicants that they are under no obligation to share any information regarding expunged charges.
Administrators, employees or regular volunteers with youth service organizations in California must go through a background check to find and exclude any who have a history of child abuse. (Regular volunteers are those 18 and older who have direct contact with children for over 16 hours per month or 32 hours annually.)
The state's Clean Slate Law expands automatic record relief to seal the criminal records of people convicted of certain felonies on or after January 1, 2005. Individuals must have carried out their sentence, probation, parole or other terms of the conviction, and have gone four years without being convicted of another felony.
California employers can use consumer credit reports to make employment decisions only if the position in question is:
- A managerial position
- A position in the State Department of Justice
- A law enforcement position
- Required by law to include a credit report
- One which involves working regularly with individuals’ sensitive personal information
- One in which the candidate will have fiduciary responsibilities on behalf of the employer
- One in which the candidate will have access to trade secrets and other valuable business information
- One in which the candidate will have access to $10,000 or more in cash
Before obtaining a credit report on a candidate, California employers must: Inform the applicant that a credit report is being reviewed and could affect the hiring decision
- Reveal the Consumer Reporting A providing the credit report
- Allow the applicant to request a free copy of the report. If the applicant wants a copy, the report must be sent to the applicant and the employer at the same time.
Employers cannot not use a candidate’s salary history when making hiring decisions or setting salaries for a position. Employers must provide a pay scale for the position. Employers cannot request salary history from a candidate or use a candidate’s salary history as a factor in determining a) whether to offer employment or b) what salary to offer. Employers must also give the candidate a “pay scale” for the position to which they are applying. Employers with 15 or more employees must include salary ranges and pay scales for both internal and external job postings.
CA Rules of Court, Rule 2.507 allows for the removal of dates of birth and/or driver’s license numbers from being used to identify individuals when conducting electronic searches of court records. The California Court of Appeals upheld the rule in All of Us or None of Us v. Hamrick. In instances where data cannot be retrieved electronically, verifications of DOB or driver’s license numbers require visiting a courthouse in person.
Ban the Box Policies – California
California’s ban-the-box law prohibits public sector employers from inquiring into an applicant's criminal history until the candidate is deemed qualified to meet the minimum requirements of the position. California employers with at least five employees, regardless of those employees’ work location, cannot use criminal history in employment decisions if doing so would adversely affect candidates, and
- the employer cannot prove such use is job-related and consistent with business necessity; or
- the screening and hiring policy must be the absolute least discriminatory method for achieving the business need.
San Francisco's Fair Chance Ordinance, which applies to all city businesses with five or more employees, prohibits employers from asking about criminal records until after making a conditional offer of employment.
Employers are also forbidden from considering:
- An arrest not leading to a conviction, except for unresolved arrests
- Participation in a diversion or deferral of judgment program
- A conviction that has been dismissed, expunged, otherwise invalidated, or inoperative
- A conviction in the juvenile justice system
- An offense other than a felony or misdemeanor, such as an infraction
- A conviction more than seven years old (unless the position being considered supervises minors or dependent adults).
The Los Angeles Fair Chance Initiative for Hiring Ordinance (FCIHO) applies to private employers and city contractors in the City of Los Angeles who have at least 10 employees. Under FCIHO, employers:
- Cannot include any inquiries into a candidate’s criminal history in job applications or postings
- Cannot inquire about a candidate’s criminal history until after a conditional offer of employment is made
- Conduct a written assessment linking specific aspects of the candidate’s criminal history with risks specific to the job being sought.
- Give a candidate an opportunity for the Fair Chance Process if an offer of employment is withdrawn due to criminal history
- Wait at least five business days before taking adverse action or filling the job.
Other local ban-the-box laws include: the county government of Alameda and Santa Clara and the city governments in Berkeley, Carson, Compton, East Palo Alto, Oakland, Pasadena, Richmond and Sacramento.
