Looking for a new job and worried about a pre-employment background check?
You are not alone. Finding out what negative information about you is available to potential employers early may prevent the loss of a valuable job offer.
Here is a breakdown of the main types of “background checks” employers typically use, possibilities for corrective action, and info on how to Do Your Own On Line 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”. And the laws on background states vary from state to state, and even from occupation to occupation. Thus, it is important to understand the terminology of what you may be asked to consent to when applying for a job.
“Background check” is a common term used to describe any one or a combination of reports collected about individuals for employment purposes.
The Federal Fair Credit Reporting Act (FCRA) sets the national United States standard for employers who want to find out more about an applicant or current employee and is enforced by the Federal Trade Commission (FTC).
The technical term used by the FCRA for a collection of “background check” data is a “consumer report,” defined as “…any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living….”. (15 USC §1681a(d)(1); See also PrivacyRights.org)
In general, the FCRA has a seven-year rule as the limit for reporting negative information on an employment background check.
For California employers, the legal term for a “background check” is defined by law differently. In that jurisdiction, it is called an “investigative consumer report,” which includes information about a person’s “character, general reputation, personal characteristics,” but does not include information about creditworthiness.
|If an employer hires an outside screening company to check a job applicant’s background, California Civil Code section 1786.16 requires a written notice and consent for the report. (See CA Civil Code sec 1786.16)|
A screening company, called an investigative consumer reporting agency or IRC in the law, must have the employer certify that the report will only be used for a permissible employment purpose.
A consumer who requests a copy of such a report should get it within 3 days after the employer receives it. The report should also give you the name, address, and telephone number of the person or agency that conducted the background check. The law gives you the right to correct and explain inaccurate information in a pre employment background report.
Driver History Reports Often Used by Employers.
Driver History Reports are used frequently by employers to determine many things such as: a) is the applicant a legal driver?; b) does the driver history report show signs of drug or alcohol abuse? c) can the applicant be insured to drive company vehicles, or operate a vehicle while on duty?
In California, Driver History Reports are produced by the Department of Motor Vehicles (DMV). They typically list: a) court convictions that involved a vehicle (such as DUI or failure to appear for traffic ticket); b) DMV actions against the license (such as a points suspension); c) list of addresses the DMV has for the driver; d) date of birth; and possibly more detail.You can check your own driver history report in advance. If you have failure to appear problems, you can take care of them in advance. Sometimes quickly. Get help. But convictions that are listed on the DMV Driver History Report are generally there for good. There is no way to remove a record from a conviction from DMV records.
Use of Credit Reports Drastically Restricted in 2012.
Consumer Credit Reports are supposed bill paying and financial history reports on an individual that are collected by private companies. They may include information (accurate and inaccurate) about a person’s debts, assets, and wealth, and living standard, and shopping habits, political beliefs, religion, marital history, marital status, health, etc.
Didnt know that did you? Thought they were protecting your privacy didnt you? Just like those safeway cards?
Recently, the use of Credit Reports by employers to screen potential employees has grown quickly. But so has opposition to the practice based upon the idea that a person’s bill paying history has no bearing on their ability to work now. It is an unfair measurement of nothing, used to suppress the poor, say the haters. Many states have either limited the use of credit reports in the hiring process, or are in the process of doing so.
California is on the leading edge. A new Labor Code section for 2012 dramatically limited the ability of employers to use the Credit Reports for employment decisions. The law is CA Labor Code 1024.5, and it prohibits the use of credit reports by employers unless the use falls into a listed exception to the law.
The new law was signed by the energizer governor Jerry Brown, who has always been a strong consumer advocate. It actually states: “An employer or prospective employer shall not use a consumer credit report for employment purposes unless . . . ”
The exceptions generally apply to positions that deal with a lot of money, assets, or high level of trust, such as authorization to transfer company or client funds between accounts. They actually make sense, and the new section 1024.5 is expected to drastically reduce the use of credit reports in California employment screening.
Take a copy of the law with you to the interview if you want. An employer must give you notice if they intend to use a credit report in the hiring process, even if it is legal. You have a right to an exact copy of what the employer sees, at the time they get to see it.
Criminal Background Checks or “Investigative Consumer Reports”.
Criminal history checks are a common screening tool used by employers. They are referred to by state and Federal Law as “Investigative Consumer Reports”.
Adult criminal convictions are generally a matter of public record, and anyone can look them up if they have the energy and time. There are many different levels of a criminal history check, including local courts, state courts, and federal levels.
Infractions Generally 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 in CA, 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 where more extensive Due Process Rights exist to protect the innocent.
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. Infractions are not proof of a bad character, and are not crimes of moral turpitude for employers.
There are some exceptions were an infraction may be considered a crime of moral turpitude for the government. For example, an infraction petty theft conviction can cause immigration problems. You have to read the application you are filling out very, very carefully to see if it asks you to disclose infractions.
Juvenile convictions are generally sealed by the courts and shielded from public viewing.
Arrests that Do Not Result in Conviction or Where There is a Pending Criminal Case.
California law follows the FCRA’s seven-year rule as the limit for reporting negative information on an employment background check. But there are differences. Under CA law criminal convictions can only be reported for seven years unless another statute allows a longer period. Under the FCRA, criminal convictions, once they happen, can be reported indefinitely.
California has a ten-year limit for reporting bankruptcies in pre employment screenings, the same as the FCRA. (See CA Civil Code 1786.18)
Misdemeanor Convictions and Felony Convictions Are Reportable.
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. Anyone can look them up by going to the courthouse.
What About Current Probation?
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.
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.
Technically, when the court issue a bench or arrest warrant for a person it means they are a fugitive from justice – which is not a good trait for employment applicants.
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, diligent employers prefer applicants without pending criminal court problems.
When there is a warrant problem, some employers will give an applicant some time to solve the problem. If you are in that situation, ask for time to solve the problem, and Request a Free Attorney Case Review from TrafficCourtPros.com.
The Employer Must Give You Notice of What They Will Use.
California law requires that employers tell applicants what personal or private info they will be collecting and using in the hiring process. (See California Civil Code 1786.16(a)) The government has published a sample disclosure form for employers, which you can review to get a sense of what notice you are entitled to.
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:
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 Ventura, 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 and Arrest Warrants Can Be Cleared In Court.
Misdemeanor Warrants can generally be fixed fast if the Defendant takes voluntary action. There may be consequences, but the warrant part of the problem can often be fixed quickly if the defendant gets the case back on track.
In most misdemeanor cases, an Attorney can go to court for a defendant to handle common warrants on DUI cases, driving on a suspended drivers license, petty theft, probation violations, etc.
In serious misdemeanors, or felonies, the defendant must appear with or without an attorney to clear a warrant. And of course, jail time is always a possibility when there is a warrant. But taking action voluntarily maximizes the chances of a no jail result.
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