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CRIMINAL LAW BLOG

Will a Misdemeanor Show Up on a Background Check?

Posted by Dmitry Gorin | Jun 29, 2024

Company hiring managers prioritize the selection of a qualified candidate who aligns with the company's values and upholds its integrity. Often, even seemingly minor crimes can raise a red flag.

Will a Misdemeanor Show Up on a Background Check?
A background check in California will typically show a misdemeanor conviction.

For example, a history of driving under the influence (DUI) can be a sign of things to come and show that a candidate may not be a responsible person.

Job candidates who check all the job-related boxes often can still fall short if they have a history of criminal convictions, but not all convictions are the same.

A misdemeanor in California is a lesser crime than a felony and is often punishable by less than one year of incarceration, a fine, or both. In many cases, the judge imposes only probation with no jail time, but it depends on the case details.

Some of the most common California misdemeanors include DUI, shoplifting, trespassing, driving on a suspended license, simple assault, public intoxication, disorderly conduct, domestic battery, and drug possession.

In California, a background check will typically reveal if somebody was convicted of a misdemeanor or felony. Infractions usually result in a fine, and generally, they won't appear on criminal background checks, such as littering or traffic tickets.

What is a Background Check?

A background check is when an employer obtains information on your history, including your criminal history and jail time. It is often called an employment background check.

Employers can independently conduct a background check or hire a third-party reporting agency. While employers can receive information about your conviction, some ban-the-box laws limit when and whether they can be considered in hiring decisions.

Under California law, a business cannot access information on an arrest that did not lead to a conviction unless the case is still pending in court. An employer can also not receive information on expunged or sealed convictions.

The primary question is whether your misdemeanor conviction will appear on a California background check, which can impact your ability to secure a job. The easy answer is yes; all criminal convictions (misdemeanors and felonies) can appear on criminal background checks, at least for a while.

Simply put, a background check is when a potential employer screens your history, which could disclose the following information:

  • Criminal history,
  • Criminal convictions,
  • Jail time and
  • Credit reports.

These background checks typically show if someone has been convicted. Even when employers obtain information regarding a conviction, some laws limit whether they can be used against you in hiring decisions.

Being convicted of a misdemeanor does not necessarily preclude you from obtaining work in California.

What are Fair Employment Laws?

California passed several laws to promote fair employment opportunities, especially for those with a criminal history. Recent changes ensure that misdemeanors are automatically sealed after some time with no further criminal activity.

As noted, it's unlawful for an employer to get access to information on an arrest that did not lead to a conviction unless the case is pending. Employers can't get information on any convictions expunged or sealed.

State and federal laws prohibit employers in California from discriminating against applicants based on the following factors: religion, race, gender, age, ethnicity, or sexual orientation.

California passed the Fair Chance Act (Ban the Box law) under Assembly Bill 1008 in 2018. The primary goal is to ensure that job seekers are evaluated based on their qualifications and skills rather than their past offenses.

Under this law, employers are prohibited from inquiring about an applicant's criminal history until they have made a conditional job offer.

What are California's Clean Slate Laws?

California has passed laws that allow the automatic sealing of criminal records, provided certain conditions have been satisfied. AB 1076 and SB 731, California's "clean slate laws," have dramatically impacted prior convictions.

California's Clean Slate Laws

Suppose you're convicted of a misdemeanor. If there is no further criminal activity, your record will automatically be sealed after you complete your probation or one year after your sentence.

This law also provides for the automatic sealing of certain non-violent felonies four years after the completion of the sentence. These laws were passed and implemented in 2019 and became effective as of July 2023.

Simply put, if you complete your misdemeanor sentence and stay out of trouble, your offense will no longer appear on employer background checks.

After your criminal record has been sealed, you have the legal right to say "no" to whether you were convicted of a crime. If your employer discovers the sealed misdemeanor, they cannot deny employment.

The Fair Credit Reporting Act (FCRA) mandates that employers get an applicant's written consent before they conduct a criminal background check and

give notice to them if they deny employment because of information discovered in the check.

The FCRA only applies to employees who use a third party for their background checks, not if the company conducts them independently.

What are the Sources of Background Check Information?

The background check laws in California allow parties to get information from numerous sources, such as the following:

  • Public records,
  • Court records,
  • Arrest records,
  • DMV driving records,
  • Vehicle registration,
  • Social Security records,
  • State licensing records,
  • Sex offender registries,
  • Immigration records,
  • Credit report,
  • Education records,
  • Insurance claims,
  • Tenant history,
  • Workers' compensation.

Criminal convictions for misdemeanors and felonies for the past seven years are typically disclosed. Employers are prohibited from getting access to the following information:

  • An arrest that did not result in your conviction.
  • An arrest that occurred over seven years before.
  • An arrest that led to a successful diversion program,
  • Convictions that were expunged or sealed,
  • Certain marijuana crimes.

What Information Shows Up on Background Checks?

Your background check or separate driving history check can disclose any of the following information:

  • Past misdemeanor or felony convictions from the past seven years.
  • Evictions.
  • Traffic citations.
  • Negative credit report information.
  • Workers compensation information.
  • Schools you attended.
  • Miltary information.

Assessing Applicants

Suppose a misdemeanor conviction appears on your record. In that case, the employer must then undertake an individualized assessment.

This means they must consider numerous factors before rescinding an employment based on a criminal record, such as the nature and severity of the crime and the amount of time that has elapsed.

After this assessment, the employer can only rescind the conditional job offer if they can make a direct negative connection between the aspects of the conviction history and the inherent risks of the job.

Before deciding, the employer must give the applicant a chance to dispute the accuracy of the conviction record or show rehabilitation or other mitigating factors. In other words, you are allowed to explain past and present circumstances. Contact our California criminal defense lawyers for more information. Eisner Gorin LLP is based in Los Angeles, CA.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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