What to Worry About for a Pre Employment Background Check.

Looking for a new job and worried about a pre-employment background check? You are not alone. Finding out what information is available about you to potential employers, and taking corrective action early. may prevent the loss of a valuable job offer.

Here is a review of the problems that can show up on a background check, possibilities for corrective action, and info on how to Do Your Own On Line Background Check.

At TrafficCourtPros.com we have noticed a marked increase in the number of people who have been denied a valuable job opportunity because a pre employment background check revealed a bench warrant, misdemeanor failure to appear suspension, or pending probation violation.

The new corporate appetite for screening information is fueled by easy, and cheap access to criminal history reports and background checks on the Internet. Employers are using these checks as a way to eliminate applicants with pending court problems.  However, many of the problems that can cause the loss of a job opportunity can be solved before a loss of a job opportunity.

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Job Applicants Forced to Consent to Invasive Background Screening.

Unfortunately, applicants have little leverage to parent hiring decisions based upon information found on background checks.

California’s State Constitution does include an explicit right to privacy in its list of citizen rights (Article I, section1), and a citizen may bring a lawsuit for damages if this right is violated. But generally, this right does not apply to pre employment background screening.

This is due to the fact that many employers require applicants to consent to invasive background screening by signing a waiver on a job application. It’s in all of that fine print you sign on the bottom of a job application form. In short, many companies require job applicants to give up any legal rights to privacy they have to limit pre employment screening.

If you give them permission, a potential employer may search for criminal records, do a credit check, and require drug testing.

There Is No Standard For Background Checks.

There is no standard “Background Check” that all employers use. Employers may use any number of methods and sources to do a background check. But the common denominator in all of the varied methods is that they search public criminal history records maintained by state and federal courts, and law enforcement agencies.

All adult criminal records are public information and available to anyone unless sealed by the court under special application.

Infractions Do Not Appear In Criminal History Reports.

In general, job applicants do not need to worry about violations that are classified as “Infractions”. An Infraction is technically not defined as a crime, and carries only a fine as punishment.

Because infractions are not crimes, a defendant only gets a limited right to contest an infraction. The court can convict a defendant of an infraction even if the defendant never shows up. This is not true of crimes.

In general, a job applicant does not need to disclose the fact that they were found guilty of an infraction (such as speeding) to an employer.

But misdemeanor problems, including a failure to appear on an infraction, does cause the loss of job opportunities.

Misdemeanor Convictions and Felony Convictions Are Crimes.

Misdemeanors and felonies are different than Infractions. They are crimes, and generally must be disclosed to a potential employer if the applicant is asked. Such convictions will appear on background checks and can cause disqualifications.

What Shows Up on a Background Check?

Most pre employment background checks will reveal the following problems:

Felony Convictions: nearly all felony convictions will be available to anyone who knows where to look.

Misdemeanors Convictions: Misdemeanor convictions are public records, and can easily be found by anyone doing a search for a criminal history. However there are some exceptions.

Common misdemeanors that appear on criminal history reports available to the public include Driving on a Suspended License (Vehicle Code section 14601.1 -14601.5); and Driving Under the Influence (DUI), Vehicle Code section 23152.

Some violations can also be infractions if so designated by the court at the time of conviction and are designated as “minor traffic offense” by the court and generally do not cause pre-employment disqualifications.

Violations such as driving without a valid license (Vehicle code section 12500a) is an example of a violation that can be a misdemeanor or infraction.

Active Probation Will Show Up.

Probation is generally a period of court supervision that is granted in place of a jail sentence. Probation usually includes a limited time period (months or years) and terms that are court orders the defendant must satisfy. Active probation periods will appear on a background check and can cause disqualification.

Outstanding Warrants Are a Common Cause of Job Applicant Disqualification.

The court needs the defendant (or an attorney for the defendant) in court to complete a misdemeanor conviction. Because of this, when there is a misdemeanor charge, and the defendant fails to appear for a hearing, the court will issue an arrest warrant or bench warrant to get the defendant into court.

When an employer discovers a job applicant has an outstanding bench warrant or arrest warrant, generally, it is cause for disqualification of an applicant immediately. From the employers point of view, they do not want to hire someone and worry that they will be arrested and miss work, or worse yet, be arrested at work. Clearly, employers prefer applicants without a warrant.

But some employers will give an applicant some time to clear a warrant problem once discovered.

How To Find Out What Information Is Available on You.

Knowing what is out there will help a job applicant prepare for the disclosure, and may allow corrective action before the employer makes a disqualification. Here is how to get the info yourself:

1. You can do your own Instant Background Check.

2. You can check with the court where you know you have a problem.

3. If you believe you may have a warrant or missed a court date, you can contact the local county sheriffs office to do your own warrant search, or call the court clerk where your case is located. Some courts and sheriffs offices allow warrant searches on-line.

4. You can find warrant and case information on anyone on line in counties such as Riverside, San Bernardino, San Diego, Orange County, and many others. Visit TrafficCourtPros.com for more free warrant search resources.

What Types of Background Problems Can Be Corrected?

Expungements Can Clear the Record of Some Convictions.

Some misdemeanor convictions and non violent felony convictions can be “expunged” – which means removed from if the courts records. To get an expungement, you must petition the court for termination of probation and dismissal of the case.

State law determines which convictions can be expunged, and generally the court requires that a defendant have proved himself or herself rehabilitated from the criminal behavior.

An application for an expungement commonly takes 60-90 days, but can take longer depending on the court.

Probation can be terminated early in some cases where the defendant has stayed out of trouble for most of the probation period. Request a free case review to get more info on this possibility for a specific case.

Bench Warrants Can Be Cleared In Court.

Misdemeanor Warrants can generally be fixed fast. Because warrants are issued from the court because a defendant has not appeared in court, once a court appearance is made, the court can recall the warrant.

In most misdemeanor cases, an Attorney can go to court for a defendant to clear a warrant. In serious misdemeanors, or felonies, the defendant must appear with or without an attorney to clear a warrant.

On some warrants, jail time is required. But once the appearance is made and the court satisfied, the warrant can be recalled.

The amount of time it takes to clear a warrant varies from case to case. But in many cases, a court date for a warrant recall can be scheduled within a few days.

What Can An Applicant Do If A Potential Employer Finds Something?

Many companies will give an applicant time to clear a problem succh as a misdemeanor warrant or probation term. Applicants can negotiate for this time by asking for it. And any applicant in this situation would be wise to tell the employer exactly what they plan to do, and remind the employer of the potential value they can still bring to the company.

Driver History Reports Are Not Criminal Records.

However, applicants should be careful not to confuse a criminal history report from the court or law enforcement with a Drivers History Report from the Department of Motor Vehicles. A drivers history report or “DMV record” will reveal all moving violations, whether they are infractions or misdemeanors (including speeding, failure to appear, etc).

If you have a warrant you need to clear, probation you need to terminate, or a conviction you want to try to expunge, get a Free Attorney Case Review from TrafficCourtPros.com.

If you want to do your own Instant Background Check, I recommend: www.Gov-Resources.com

-Christopher Dort, Esq.

Editor Email: cdort@dortlaw.com

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Was Your Failure to Appear a Misdemeanor or an Infraction? Make Sure Your Get a Clear Record.

Some traffic court violations always start out in court as a Misdemeanor charge, but can be reduced to infractions by the court. In many failure to appear cases, it is not clear to traffic court defendants whether they were convicted of a misdemeanor, or the less serious Infraction version of a violation.

Sometimes, after the case is over, the Department of Motor Vehicles will get it wrong, and list the case as a misdemeanor conviction on a driver’s history report, when in fact it was not a misdemeanor. Getting a clear record of a case from the court when it ends can protect a driver from this messy problem.

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The details of the problem are these:

There is a big difference between a Misdemeanor Conviction and Infraction Violation. Misdemeanors are real crimes that have a maximum penalty of up to one year in the county jail. Misdemeanors show up on background and criminal records checks as criminal convictions.

Infractions are much less serious. They are not considered crimes, and carry only a fine as the maximum sentence. They do not appear on criminal records / pre employment screenings.

Some Vehicle Code violations, such as a failure to appear in court (Vehicle Code section 40508a), and driving without a valid license (Vehicle Code section 12500a) always start out as a misdemeanor charge, but can be reduced to an infraction by the court when a defendant pleads guilty or no contest.

Many traffic court commissioners and judges will routinely reduce a failure to appear charge under 40508a from a misdemeanor to an infraction if a defendant shows up in court voluntarily and resolves their case efficiently but pleading guilty or no contest.

When a misdemeanor failure to appear charge is reduced to an infraction by a traffic court, the penalty is generally a simple fine. The court’s record of the case is changed from a pending case with a Vehicle Code section 40508a Misdemeanor charge, to list a conviction of a Vehicle Code section 40508a “Infraction”. The case number and the vehicle code violation number (the statute) are the same, but the classification is very different than when the case started.

The court then notifies the DMV that the case is no longer pending, and ended as a conviction.

Somewhere along the line things can get mixed up. The California Department of Motor Vehicles does not always correctly document what happens in court. At TrafficCourtPros.com, we have noticed the DMV at times mislabels failure to appear convictions as misdemeanors, when they were reduced to infractions by the court.

Our theory (based on opinion) as to why it happens it that the court employees and DMV employees responsible for the communications do not understand the difference between a misdemeanor and infraction.

Because a failure to appear charge under Vehicle Code section 40508a always starts out as a misdemeanor, DMV gets notice of a misdemeanor failure to appear form the court and notes it on the drivers history record for the driver as misdemeanor.

If the driver is later convicted in court of a 40508a violation reduced to an infraction, the DMV gets notice of the conviction from the court, and changes the driver’s history record to reflect a 40508a conviction. But the bad news is they often fail to correct the listing from a “misdemeanor” to an “infraction” on the DMV record.

The result is that although there really was not a misdemeanor conviction in court, the DMV incorrectly lists the driver of having a misdemeanor 40508a conviction.

If the driver does not have proof that the court reduced the misdemeanor to an infraction, getting a misdemeanor conviction removed from DMV records can be a nightmare.

But if the driver gets a clear record of the conviction on a court abstract at the time the case ends, the problem can be cleared quickly. All the driver has to do is take the court abstract to a DMV office.

Unfortunately, a common and serious mistake made by people in traffic court is that they fail to clarify whether or not they are being convicted of an infraction or a misdemeanor while in court.

So her is our Newest Traffic Court Self Help Tip: If you are going to court on a failure to appear charge (40508a), get a clear record of the violations you are convicted of when the case is over. Keep copies of the paperwork in a safe place.

If you are not sure if you are being convicted of an infraction or a misdemeanor, ask the judge to clarify it. It’s your right to know for certain. Get proof and check to make sure DMV has it right. Contact the DMV Driver Safety Office near you for details on what they have listed on your record.
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-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

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