Background checks are a routine part of the employment hiring process.
Background checks are a routine part of the employment hiring process. Employers conduct background checks to protect themselves, their customers, and the public. There are two types of background checks. One background check is obtained through the California Dept. of Justice which requires fingerprints, consent for the requesting party, and are usually obtained for sensitive jobs like those in schools, transportation, private security, healthcare or in state licensing jobs. The second type are obtained through a commercial background check company and are the most common used by employers. Unfortunately, in both types of background checks there can be mistakes in the records. You can correct errors in these records, but you can expect to spend time and effort to correct any errors.
If you know you may have something on your criminal record, the proactive action to take is to obtain your criminal record from both the State of California Dept. of Justice and from one of the main commercial background check companies. That way if there is a problem you can correct it prior to it interfering with an employment opportunity. The California DOJ website has instructions on how to obtain your California criminal record. The Consumer Finance Protection Bureau maintains a list of commercial background companies that offer background check information. You must then contact each organization individually to make any corrections.
Employers are limited to the questions they can ask about prior criminal conduct. An employer can’t ask you about arrests that did not lead to convictions except for law enforcement and certain drug arrests for positions in healthcare facilities and pharmacies (CA Labor Code 432.7); arrests for which a diversion program was completed (CA Labor Code 432.7(a), 2 CCR7287.4(d)(1)(C)); certain marijuana related convictions, if the conviction is over two years old (CA Labor Code 432.8); misdemeanor convictions that have been dismissed pursuant to Penal Code 1203.4 (2CCR7287.4(d)(1)(B)); or any conviction that has been sealed and expunged like juvenile records (2CCR7787.4(d)(1)(B)). Employers can ask direct questions about convictions like “Have you ever been convicted of a felony”. Public employers and law enforcement can request more information from applicants than private employers.
The reality is that 80% of large employers now conduct criminal background checks. This is most often done through commercially prepared background check companies. The information these companies get is through public records. Commercial background check companies do not get their information from the FBI or CA Department of Justice because those records are confidential and not accessible to third parties without consent or unless specifically allowed by law.
Since the records that commercial companies obtain are through public records and not the official arrest and conviction records kept by the government, there can be problems with the information obtained. Inaccuracies including wrong grade of offense, failure to list disposition of an arrest, failing to show that charges were dropped, or that a conviction was overturned on appeal. False positives happen because records are mismatched with people with similar names and birthdates.
If you do find an error, you can dispute it the same way you would dispute a credit report error. You will need to contact the background check company and notify them of the error. By law, they have to investigate the error and make any corrections within 30 days of your complaint. If the background check company refuses to make a correction or investigate your claim, you can file a complaint with the Federal Trade Commission (FTC). While the FTC cannot make corrections to your background check, it can investigate and sue the background check company if it does find wrongdoing.
Under California law, commercially prepared background checks cannot report arrests not leading to a conviction unless the company has verified in the last 30 days that the arrest is still open or convictions dating back more than 7 years. In California, workers are entitled to a copy of the report within three days of when it is provided to the employer (CCC1786).
Private background check companies can’t report arrests or other adverse information that is more than seven years old unless the report concerns employment of an individual whose annual salary is $75,000 or more (15USC1681c(a)(2), 1681c(b)(3)). Convictions can be reported indefinitely (15USC1681c(a)(5). The employer requesting the report must provide clear written notice and obtain written authorization from the job applicant (15USC1681b(b)(2)(A)). If the employer plans to take “adverse action” (not hiring, firing) based on the report, the employer must provide the applicant with a copy of the report and a copy of the Federal Trade Commission Summary of Rights before taking action. This gives the applicant the opportunity to clear up any inaccuracies in the report. If the employer goes forward with the adverse action, it must provide notice to the applicant about the adverse decision, the contact information of the reporting agency, and the applicants right to dispute the accuracy of completeness of the report (15USC1681b(b)(3), 1681m(a)).
State law requires DOJ criminal background checks on hundreds of entry level occupations including schools, transportation, private security, and healthcare. Dept. of Justice criminal background checks are also required for state licensing agencies.
Your official criminal record (RAP Sheet) in California is officially held and maintained by the California Department of Justice (DOJ). Access to your criminal history records maintained by the DOJ is restricted by law to law enforcement and authorized applicant agencies. Individuals have the right to request a copy of their own criminal history record from the Department to review for accuracy and completeness. Your criminal record is a confidential document that third parties are not authorized to obtain or have access to it unless you authorize it.
To receive a copy of YOUR criminal history record, you must submit fingerprint images, pay a $25 processing fee to the DOJ. Go to the California Department of Justice website for information on obtaining your California criminal record. https://oag.ca.gov/fingerprints/security
Fingerprinting services are available at most local police departments, sheriff’s offices or any public applicant Live Scan site.
If you want to challenge the contents of your criminal record, you must complete the “Claim of Alleged Inaccuracy or Incompleteness” form which will be included with your Record Review response if there is criminal information on your record. Mail the completed form, along with a copy of your criminal history record, to the address indicated on the form. Your challenge must specifically state the basis for the claim of inaccuracy or incompleteness and include any available proof or corroboration to substantiate your claim.
Federal law requires background checks using FBI rap sheets for millions of workers. The FBI conducts more fingerprint based background checks for employment purposes than from criminal investigations.