Job application rights with a criminal record
Are you applying for a job with a criminal record and want to know your rights? Read below for the protections California and federal law provide for job applicants and employees. If you need any more information, please contact the Law Office of David Reagan for a free consultation. We represent clients in Alameda County, Contra Costa County, San Francisco County, and beyond for all types of clean record petitions.
What will my employer see when I apply for a job and there is a background check?
What an employer sees on a background check really depends upon what type of job you are applying for. Say you are applying for a job as an administrative assistant at a shipping company. The job application should first ask whether you consent to a background check (which you will probably need to do to be considered for the position). The company will then contract with a private background check company to find your criminal background.
Commercial Background Check
Commercial background check companies are not allowed to report convictions dismissed under Penal Code section 1203.4 (expungements), arrests that did not lead to conviction (unless the case is still pending), and criminal convictions more than seven years old. (Cal. Civil Code § 1785.13.) If an employer plans to deny employment because of a criminal background check, the employer is supposed to provide you with a copy of the background check beforehand so that you can contest its accuracy. (Fair Credit Reporting Act.)
The seven-year rule does not apply to some criminal convictions. The common exceptions include jobs in law enforcement, education, childcare, elderly care, phone companies, finance, alarm companies, pharmacists and private investigators.
Government Background Check
You will know that you are subject to a government background check because you are working in a sensitive position, like education of children or nursing, and you are required to have your fingerprints taken. The extent of government background checks vary greatly by the type of job one is applying for. Some low-level jobs do not report dismissed cases, other high-level jobs report every arrest and conviction in a person's life, including cases dismissed under Penal Code section 1203.4
Regardless of the type of job, one way to be sure that everything is correct in the Department of Justice database is to request your own record. The instructions are found at the Department of Justice website. If there is an error, a form is provided to notify the DOJ of the need for correction.
Questions at job interview about convictions and an employers use of expunged convictions
Beginning on July 1, 2014, governments and cities cannot ask you whether you have any convictions until after they have decided if you are qualified for the position. (Labor Code § 432.9.) In San Francisco, the Fair Chance Act bars pre-interview questions about convictions for government positions, public housing, and employers who work with the government.
An employer cannot seek out information on an expunged conviction, deferred entry of judgement, or an arrest that did not lead to a conviction (unless still pending), nor can an employer use any of these cases to make an employment decision like hiring, firing, or promotion. (Cal. Labor Code § 432.7.) There are some exceptions for law enforcement positiions and certain health care jobs. Nonetheless, if an employer uses an expunged conviction to decide employment in a case prohibited by the Labor Code, the employer can be sued for damages.
If you have any questions about criminal background checks, criminal records, or the procedures available to clean criminal records, please contact Oakland attorney David Reagan for a free consultation.
About David Reagan
A Bay Area native and top graduate of Santa Clara University School of Law, Mr. Reagan uses his passion for justice to clean all types of criminal records.
"Mr. Reagan handled my court isuses in such a professional manner and had his briefs prepared so well that the Judge in Superior Court of Alameda County gave him kudos in "open court " That was the first time I have ever seen or heard of that happening. It made me very proud to be his client." -J.
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