Someone can conduct a background check on you purposely to examine your past and see how it relates to your present situation. House owners, prospective employers, and companies are known to conduct background checks when interacting with people. A background check can reveal details concerning your life that you would rather keep secret, including your criminal record. A background check can inform a prospective employer regarding the number of offenses you have been convicted of previously. Your previous conviction, the school you attended, the dates you attended, and any unfavorable information on your credit report are additional details an individual can discover in your background check. An experienced attorney can help you understand how background checks work, including how to erase a negative record.
Understanding Criminal Record Check
Employers and companies can conduct a criminal record check to learn more about your previous life. A criminal record check is the procedure used to reveal your criminal history. Businesses and prospective employers can conduct criminal record checks independently or with the help of a third party.
If an employer performs the check independently, they will likely access less information about you. Independent background checks reveal limited information, which will not assist them in making decisions. Therefore, many businesses or employers work with investigation reporting firms or neutral parties. These organizations carry out background checks on companies or individuals, compile the information they gather, and issue it to the parties that require it at a fee.
The Details That Can Be Secured In Your Criminal Record Check
A criminal record check can reveal a variety of information regarding your life. Some of the information can include:
- Your military data, like assignments, honors, your ranks, and the time you served
- Negative details concerning housing, like past eviction records
- The school you attended and the dates you attended
- Information regarding your workers' compensation
- Every adverse item on your credit report
- Your past misdemeanor and felony convictions dating back seven years from when the check is done
However, the businesses and employers are not allowed to disclose the following information:
- Crimes associated with marijuana
- Sealed and expunged records
- A conviction for which you completed treatment or rehabilitation
- A conviction for which the governor pardoned you
- Convictions that are more than seven years from the day the background check was conducted
- Arrests that did not lead to a conviction, excluding those that are pending
The law allows employers to contact your references and conduct background checks to learn more about your previous life. Your references could be:
- Mentors and role models
- Friends and family members
- Colleagues at work
- Past employers
- Neighbors
Your personality qualities, attitude, conduct, reputation, work ethic, and character are all highlighted in these references.
Your criminal record checks carried out by employers only date seven years from the check date. This is so because a seven-year guideline governs employers. An employer can only conduct a seven-year record check once you receive a conditional job offer. Your prospective employer will not be able to see the convictions that happened over seven years ago. The employer cannot use that information as grounds to disqualify you.
The Source Of Information On Your Criminal Record Check
Criminal record checks contain data secured from different sources, including civil and criminal justice organizations. A corporation or prospective employer can access the following sources of information concerning you in your background check report:
- Social security data
- State licensing data
- Data from the list of sex offender registration
- Immigration records
- Insurance claim reports
- Vehicle registration or DMV driving records
- Checks writing history
- Tenant history
- Your references
- Education records
- Records from your worker's compensation
- Credit information from different consumer reporting companies
- Criminal, arrest, and court records
At times, background checks simultaneously compile data from each of the above sources. Few sources can be consulted from a single review. An employer or a company can't obtain background data from specific sources because it is subject to legal exemptions. For example, your medical record is kept private to preserve privacy. Employers can only retrieve data for potential employees, which can assist in hiring decisions.
Whether Criminal Record Check Is Lawful
Carrying out a criminal record check is lawful. However, businesses and employers are subject to specific legal limitations or requirements while performing background checks for employment. The following categories are subject to limitations:
Anti-Discrimination Laws
Federal and state laws prohibit recruiters from discriminating against people based on sexual orientation, ethnicity, or race. If a policy requires businesses to turn down job applicants with criminal backgrounds, they can easily break the law.
The CIPA
CIPA is the law that governs information privacy. Prospective employers must secure your consent before conducting a criminal record check. Employers cannot carry out criminal record checks on in-office staff under this statute. If the employer decides to do so, he/she must do the following:
- Give the alternative to accessing the background check report
- Serve you with copies of the report if they access the report
Ban The Box Law
Ban the Box Act went into effect in 2018. According to this law, the following requirements apply:
- It is a crime for an employer to check your criminal background before offering you a conditional job that you can accept
A company cannot ask about your criminal record during the interview or before making a conditional job offer.
This law also covers private companies with more than five employees. The employer can ask you about your criminal record during the recruitment process. However, your prospective employer can only do so after offering you a conditional job. The condition is based on your ability to meet several requirements, like:
- Reviewing your criminal convictions, when applicable
- Passing the background check
If your employer discovers you have prior criminal convictions, the law prohibits them from denying you employment. Your employer must examine you individually to determine your suitability for work. This will enable your employer to consider additional factors before hiring you. Additional factors could include:
- The type of job you are looking for
- The time you have taken since you committed the offense or completed your jail term
- If your criminal record is substantially associated with the specific duties of the job you want,
- The seriousness of the offense or your conduct
A potential employer can deny you employment after this evaluation, provided their decision is in the company's best interest. Your prospective employer should inform you of their decision following this evaluation in writing. You will have less than five days to respond to the notice with evidence of your rehabilitation or any mitigating circumstances. For example, you can provide evidence indicating completing a rehabilitation program or community service. If you reply to the notice, a good employer should consider your response. After careful consideration, a prospective employer can choose from the following options:
- Reject your application based on information on your criminal record or
- Offer you employment
Fair Chance Laws
Fair chance laws were in operation before the Ban the Box Act was passed. The Ban the Box law also provides most of the rights accorded by the fair chance statute. If you have a negative criminal history, these specific laws give you a fair shot in the following ways:
- If a prospective employer rejects your job application or takes extreme action based on your criminal record,
- You can legally provide them with proof to support your eligibility for that job
Clearing Negative Data From Your Criminal Background
There are many ways to remove damaging data from your criminal record. Most of these strategies will eliminate the drawbacks and limitations of your background check results, which come with having a bad criminal record. Some of the ways include:
Sealing Juvenile Criminal Records
You can seal your juvenile records under WIC 781. This can prevent anyone performing a background check on you from accessing your data. The judge will close your case once he/she seals your record. In this case, all related documents are considered destroyed. However, you must meet the following requirements before requesting the court seal your record:
- You are innocent of major offenses like torture, robbery, or murder after the age of 14
- You are an adult and have not faced charges for a crime of moral turpitude.
- You are at least 18 years old and have not been charged in the juvenile justice system in the past five years.
Securing A Governor's Pardon
You could receive a governor's pardon if you change your criminal behavior. The governor's pardon relieves you of all the penalties for your conviction. It is unlawful for an employer to access and use your criminal data once the governor has pardoned your sentence.
Almost anyone convicted of an offense can seek a governor's pardon after completing rehabilitation. This period can be anywhere from seven to ten years, depending on the crime you have committed. You can seek the governor's pardon in the following ways:
- Securing a recommendation for a pardon from the Board of Parole Hearing. This applies to individuals who are currently serving a jail term
- Applying directly to the governor's office
- File a Certificate of Rehabilitation from the superior court
The Board of Parole Hearings typically conducts nonviolent offender parole reviews and parole suitability hearings for incarcerated adults. The board does so under the jurisdiction of the Corrections and Rehabilitation Department. The board's responsibilities also include:
- Processing foreign prisoner transfer requests
- Carrying out investigations on requests for reprieves, pardons, and commutations of sentence
- Review of sexually violent predators
- Reviewing and presiding over hearings for Offenders with a Mental Health Disorder
- Presiding over medical parole hearings
Securing A Certificate Of Rehabilitation
A certificate of rehabilitation is an order issued by the court certifying that you have fully rehabilitated from a certain criminal conviction. Penal Code 4852.01 and Penal Code 4852.21 govern the certificate process and eligibility requirements. People who qualify for certification include:
- Those who committed minor sex-related crimes under PC 290 and whose records had been sealed
- Those convicted of a felony were granted probation, and their conviction record was expunged
- Those convicted of felony and sentenced to an institution or a penal prison
You must also meet the following terms:
- You have undergone rehabilitation for two to five years after your release from custody, probation, or parole
- You must have resided in California for five years or more
Rehabilitation in this context means being out of legal trouble. Unfortunately, securing the certificate will not expunge your conviction from your record. Prospective employers could still be able to access your record. However, you can provide the certificate as evidence of rehabilitation under the Ban-the-Box law if the employer rejects your employment application.
Automatic Record Seals
On July 1, 2023, Senate Bill 731 and Assembly Bill 1076 were passed. They both comprise The Clean Slate Laws. Under these laws, most defendants' arrest and conviction records can be cleared automatically through the "automatic relief" process. The automatic relief process entails the following:
- Individuals who were convicted and sentenced to probation must be cleared once their cases close
- Clearing the cases that were dismissed
- Sealing misdemeanor arrests after one year if there are no charges - on the other hand, felony charges should be sealed after three years if there are no charges.
- Clearing misdemeanor convictions within one year after the case ends. Felony convictions should also be cleared four years after the case ends. However, this does not apply to serious, violent, or sex crime felonies.
The following are also crucial measures in SB 731:
- You cannot be disqualified because of any expunged convictions of drug possession that are more than five years old if you are applying for a teaching license
- You can withdraw your guilty or no contest plea in felony cases where you meet specified criteria. Your case will then be dropped, which could lead to automatic clearance from your criminal record.
However, if you pick up new criminal cases in the interim, there could be a delay in having your record automatically cleared.
Expungement Of Your Criminal Record
An expungement can relieve the negative consequences of a criminal conviction. Penal Code 1203.4 outlines the laws on expungement that allow any person with a criminal conviction to have it expunged after completing a jail term or probation. You can still qualify for expungement if you violate a probation condition. However, the judge has complete authority over that. You should not inform potential employers about your conviction once the judge approves your expungement petition. You should avoid doing so even if the company offers a conditional job. Both misdemeanors and felonies can be expunged.
Petitions For Finding Of Factual Innocence
You can petition for a certificate of factual innocence under Penal Code 851.8. You can file this petition after your arrest. If your petition goes through, it indicates there was no reasonable cause to believe you committed a crime. The law enforcement agency with jurisdiction over your crime should seal your arrest record for three years once the court grants your petition. Your records and the petition will be destroyed after the three-year period elapses.
Your data will not show up on a background check after the sealing of the records. You can also claim that you have no criminal history. You qualify to file a petition when:
- You have been put in custody by state or local police but not officially arrested for an offense
- You have been put in custody for a crime but not formally charged
- Your charges were dropped later, after facing the charges formally
- You faced the charges formally and were tried for the crime, but there was no criminal conviction
How You Can Access Your Criminal Record
If you are a California resident, you can order your criminal record by doing the following:
- Completing a BCIA 8016RR form
- Paying a fee of up to $25 to the Department of Justice
- Going for fingerprinting at one of the Live Scan Locations
If you are non-resident, you can order your criminal record by doing the following:
- Completing a BCIA 8705 form
- Fingerprinting - your fingerprint card must bear your full name, sex, date of birth, and return mailing address
- Submitting a money order, a $25 personal check, or a certified check to the Department of Justice
- Sending the above documents to the Bureau of Criminal Identification and Analysis, Department of Justice, and Record Review and Challenge Section
Find A Criminal Defense Attorney Near Me
A criminal record check can negatively influence your life. Therefore, you must understand how criminal record checks operate and which data they can reveal. You should also know how they can influence your life even after rehabilitation. A skilled and experienced attorney can assist you in doing this. At the Los Angeles Criminal Defense Attorney, our experienced lawyers can help you understand how criminal background checks work. We can also help delete negative information from your criminal record to reduce its effect on your life. Call us at 310-564-2605 to speak to one of our attorneys.
