Job seekers in Orange County, California, with past criminal convictions rightly feel apprehensive when applying for a job, as criminal records usually appear on background searches performed by employers.
Background checks are a common practice for California employers, helping to de-risk the hiring process by screening employees before confirming a job offer.
For those convicted of a crime, this is just one of several long-term consequences, highlighting why it is essential for people charged with a criminal offense in Orange County, California, to seek appropriate legal counsel and avoid a conviction.
But what about if you already have a criminal record? How can you help protect your job prospects and career?
What Is a Background Check?
When an employer or other company screens a person for past criminal behavior, credit history, education, military information or other public data. This is known as a background check.
Some federal, state or local laws mandate that background checks are necessary for certain job types, such as government positions, healthcare, education, and commercial driving.
The relevant information may be accessed from several sources, most notably:
- Criminal/arrest records
- Court records
- Sex offender registry lists
- State licensing records
- Workers’ compensation
- DMV driving/vehicle registration records
- Credit reports from consumer reporting agencies
- Education records
- Immigration records
In an employment context, the check is usually performed in the final stage of the hiring process after a conditional job offer is made to a candidate. However, the precise timing and details requested vary from industry to industry and employer to employer.
Employers may conduct background checks by searching public records and private sources themselves but, for convenience, many outsource this task to a commercial reporting agency.
Employee protections in California
Certain laws apply to employers when conducting background checks in California, including the Fair Chance Act, fair chance ordinances, the Fair Credit Reporting Act (FCRA), the California Information Privacy Act (CIPA), and other anti-discrimination laws.
For instance, under the Fair Chance Act (“Ban the Box” law), employers in Orange County with five or more employees cannot ask about criminal conviction history before making a job offer, with some exceptions. Furthermore, an applicant’s criminal history can only be considered after a conditional job offer has been made. Additionally, if an employer finds something on a background check, the employee must be allowed to explain it or provide documentation.
The “seven-year rule” also means that employer criminal background checks can go back only seven years (with some exceptions). Therefore, convictions older than seven years will not generally be viewable and cannot be considered when hiring.
What Criminal Information Shows Up on a Background Check?
In California, criminal convictions will always appear on a criminal record background check. Even arrests without charges can show. Criminal charges, pending charges, and dismissed charges generally appear on background checks, even if they did not result in a conviction.
Some misdemeanor convictions may be handled in county courts. Not all counties report these records to the state, which could affect the information that appears in a background check.
Residents of Orange County, California, can check criminal records by completing a BCIA 8016RR form, getting fingerprinted at a Live Scan location, and paying the relevant fee to the California Department of Justice.
You will receive your background records via U.S. Mail within approximately 2 weeks. You should scan the record for inaccuracies or missing case dismissal information. If there are inaccuracies, follow up with a criminal defense lawyer or the reporting agency to have the information corrected.
Should You Disclose a Criminal Conviction to a Potential Employer?
While employers in California are not permitted to ask about your criminal history before a conditional job offer has been issued (pending a background check), it is best to disclose this information if legally requested to do so.
Lying about a criminal record to future or current employers is highly inadvisable. Sometimes, especially for minor criminal offences committed some time ago, a simple explanation to the employer may suffice. More recent cases or serious criminal behavior can be more challenging to explain away.
If an employer decides to withdraw a conditional job offer based on criminal history, the applicant must be informed in writing with a copy of the report and be allowed at least five business days to respond.
Can a Criminal Charge Be Expunged or Sealed?
One of the legal remedies available for some criminal charges or convictions in Orange County, California is the “expungement” of the record (Penal Code 1203.4 Petition). Although the term “expungement” does not appear in the language of Penal Code 1203.4, most people refer to a dismissal after a conviction per Penal Code 1203.4 as an expungement.
After successfully obtaining an expungement, you can legally answer “no” if asked whether you have a criminal record by an employer. Furthermore, employers cannot consider convictions that have been expunged or sealed. Employers should not consider dismissed charges, statutorily eradicated charges or those charges for which the applicant has received a Certificate of Rehabilitation or pardon.
However, strict eligibility criteria apply to expungements under Penal Code 1203.4. Most importantly, applicants cannot have served time in state prison and must have completed the sentence imposed, including probation. Before applying for an expungement, it is best to work with a criminal defense attorney experienced in these matters, who can help gather and file the correct documents and supporting evidence.
Lastly, if you were arrested but criminal charges were never filed in court, or your case was dismissed, you may be eligible to file a Penal Code 851.91 Petition to have the records sealed and destroyed. Contact an experienced criminal defense attorney for an explanation on the potential outcome of this petition and it’s procedures.
How to Reduce the Impact of a Criminal Record on Employment
The best way to prevent criminal charges from affecting employment or other aspects of your future is to have your case dismissed or obtaining an acquittal at trial. The chances of achieving this increase significantly with the help of a seasoned criminal defense attorney.
If you have been arrested, convicted of a crime and served your sentence, you may be eligible for expungement and/or record sealing. If so, it is wise to proceed with these steps as a cleaner record means better job opportunities and peace of mind.
If you are concerned the effect a criminal record has on employment and want to seek advice on how to address that record, call The Law Offices of Bryan R. Kazarian in Orange County, California, today at 855-918-4253 or contact us online.
