Background check laws by state > California
Last Updated: June 2017
Except as authorized under subdivision (b), no investigative consumer reporting agency shall make or furnish any investigative consumer report containing any of the following items of information (7) Records of arrest, indictment, information, misdemeanor complaint, or conviction of a crime that, from the date of disposition, release, or parole, antedate the report by more than seven years. These items of information shall no longer be reported if at any time it is learned that, in the case of a conviction, a full pardon has been granted or, in the case of an arrest, indictment, information, or misdemeanor complaint, a conviction did not result; except that record of arrest, indictment, information, or misdemeanor complaints may be reported pending pronouncement of judgment on the particular subject matter of those records.
(b) The provisions of subdivision (a) are not applicable in either of the following circumstances: (1) If the investigative consumer report is to be used in the underwriting of life insurance involving, or that may reasonably be expected to involve, an amount of two hundred fifty thousand dollars ($250,000) or more. (2) If the investigative consumer report is to be used by an employer who is explicitly required by a governmental regulatory agency to check for records that are prohibited by subdivision (a) when the employer is reviewing a consumer’s qualification for employment. (c) Except as otherwise provided in Section 1786.28, an investigative consumer reporting agency shall not furnish an investigative consumer report that includes information that is a matter of public record and that relates to an arrest, indictment, conviction, civil judicial action, tax lien, or outstanding judgment, unless the agency has verified the accuracy of the information during the 30-day period ending on the date on which the report is furnished. (d) An investigative consumer reporting agency shall not prepare or furnish an investigative consumer report on a consumer that contains information that is adverse to the interest of the consumer and that is obtained through a personal interview with a neighbor, friend, or associate of the consumer or with another person with whom the consumer is acquainted or who has knowledge of the item of information, unless either (1) the investigative consumer reporting agency has followed reasonable procedures to obtain confirmation of the information, from an additional source that has independent and direct knowledge of the information, or (2) the person interviewed is the best possible source of the information.
In other words:
Arrests, indictments, misdemeanor complaints, and convictions of crimes older than 7 years cannot be reported in California. Any full pardon that has been granted or any arrest that did not lead to a conviction cannot be reported. However, any pending criminal charges can be reported.
(a) No employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction, or information concerning a referral to, and participation in, any pretrial or post trial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law, including, but not limited to, Sections 1203.4, 1203.4a, 1203.45, and 1210.1 of the Penal Code, nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring, promotion, termination, or any apprenticeship training program or any other training program leading to employment, any record of arrest or detention that did not result in conviction, or any record regarding a referral to, and participation in, any pretrial or post-trial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law, including, but not limited to, Sections 1203.4, 1203.4a, 1203.45, and 1210.1 of the Penal Code. As used in this section, a conviction shall include a plea, verdict, or finding of guilt regardless of whether sentence is imposed by the court. Nothing in this section shall prevent an employer from asking an employee or applicant for employment about an arrest for which the employee or applicant is out on bail or on his or her own recognizance pending trial.
In California, employers – public or private – cannot make employment decisions about a job applicant, or ask a job applicant about: (1) criminal charges that did not result in a conviction; (2) pretrial or post-trial diversion programs; or (3) dismissed or sealed convictions. However, employers are permitted to ask applicants about criminal charges that are still pending.
Prior to requesting a consumer credit report for employment purposes, the user of the report shall provide written notice to the person involved. The notice shall inform the person that a report will be used and the source of the report, and shall contain a box that the person may check off to receive a copy of the credit report. If the consumer indicates that he or she wishes to receive a copy of the report, the user shall request that a copy be provided to the person when the user requests its copy from the credit reporting agency. The report to the user and to the subject person shall be provided contemporaneously and at no charge to the subject person.
Every investigative consumer reporting agency that provides an investigative consumer report to a person other than the consumer shall make a copy of that report available, upon request and proper identification, to the consumer for at least two years after the date that the report is provided to the other person.
Cal. Labor Code 222.5
No person shall withhold or deduct from the compensation of any employee, or require any prospective employee or applicant for employment to pay, any fee for, or cost of, any pre-employment medical or physical examination taken as a condition of employment, nor shall any person withhold or deduct from the compensation of any employee, or require any employee to pay any fee for, or costs of, medical or physical examinations required by any law or regulation of federal, state or local governments or agencies thereof.
Before employers run a credit report on a job applicant, they must: (1) inform the applicant that a credit report could affect the employer’s decision, (2) reveal the maker of the credit report, and (3) allow the applicant to receive a free copy of the report. If the applicant decides to receive a credit report, a copy of the report must be sent to the applicant and the employer at the same time.
In other words:
Under California law, consumer reporting agencies must save the reports they make for at least two years.
In other words:
an employer cannot require an applicant to pay the costs associated with an employment drug screening
(a) An employer or prospective employer shall not use a consumer credit report for employment purposes unless the position of the person for whom the report is sought is any of the following: (1) A managerial position. (2) A position in the state Department of Justice. (3) That of a sworn peace officer or other law enforcement position. (4) A position for which the information contained in the report as required by law to be disclosed or obtained. (5) A position that involves regular access, for any purpose other than the routine solicitation and processing of credit card applications in a retail establishment, to all of the following types of information of any one person: (A) Bank or credit card account information. (B) Social security number. (C) Date of birth. (6) A position in which the person is, or would be, any of the following: (A) A named signatory on the bank or credit card account of the employer. (B) Authorized to transfer money on behalf of the employer. (C) Authorized to enter into financial contracts on behalf of the employer. (7) A position that involves access to confidential or proprietary information, including a formula, pattern, compilation, program, device, method, technique, process or trade secret that (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who may obtain economic value from the disclosure or use of the information, and (ii) is the subject of an effort that is reasonable under the circumstances to maintain secrecy of the information. (8) A position that involves regular access to cash totaling $10,000 or more of the employer, a customer, or client, during the workday […].
Employers in California can only use credit reports to make employment decisions if the position in question is: (1) a managerial position (2) a position in the State Department of Justice (3) a law enforcement position (4) required by law to include a credit report (5) one in which the applicant will work regularly with individuals’ sensitive personal information (6) one in which the applicant will have fiduciary responsibilities on behalf of the employer or business; (7) one in which the applicant will have access to trade secrets and other valuable business information; or (8) one in which the applicant will have access to cash of $10,000 or more.
(a) Introduction. Employers and other covered entities (“employers” for purposes of this section) in California are explicitly prohibited under other state laws from utilizing certain enumerated criminal records and information (hereinafter “criminal history”) in hiring, promotion, training, discipline, termination, and other employment decisions as outlined in subsection (b) below. Employers are prohibited under the Act from utilizing other forms of criminal history in employment decisions if doing so would have an adverse impact on individuals on a basis enumerated in the Act and the employer cannot demonstrate that the criminal history is job-related and consistent with business necessity (as defined in section 11010(b)) or if the employee or applicant has demonstrated a less discriminatory alternative means of achieving the specific business necessity as effectively.
(b) Criminal History Information Employers Are Prohibited from Seeking or Considering, Irrespective of Adverse Impact. Except if otherwise provided by law, employers are prohibited from considering the following types of criminal history, or seeking such history from the employee, applicant or a third party, when making employment decisions such as hiring, promotion, training, discipline, and termination:
(1) An arrest or detention that did not result in conviction (Labor Code section 432.7);
(2) Referral to or participation in a pretrial or post-trial diversion program (Id.);
(3) A conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to law (Id.); and
(4) A non-felony conviction for possession of marijuana that is two or more years old (Labor Code section 432.8).
(c) Additional Criminal History Limitations, Irrespective of Adverse Impact.
(1) State or local agency employers are prohibited from asking an applicant for employment to disclose information concerning her or his conviction history, including on an employment application, until the employer has determined that the applicant meets the minimum employment qualifications as stated in the notice for the position (Labor Code section 432.9).
(2) Employers may also be subject to local laws or city ordinances that provide additional limitations. For example, in addition to the criminal history outlined in subsection (b), San Francisco employers are prohibited from considering a conviction or any other determination or adjudication in the juvenile justice system; offenses other than a felony or misdemeanor, such as an infraction; and convictions that are more than 7 years old (unless the position being considered supervises minors or dependent adults) (Article 49, San Francisco Police Code).
(d) Consideration of Other Criminal Convictions and the Potential Adverse Impact. Depending on factors such as the type of convictions considered, the job position, and the geographic bounds of the applicant pool, consideration of other forms of criminal convictions, not enumerated above, may have an adverse impact on individuals on a basis protected by the Act, including, but not limited to, gender, race, and national origin. An adversely affected applicant or employee bears the burden of demonstrating that the policy of considering criminal convictions has an adverse impact on a basis enumerated in the Act. For purposes of such a determination, adverse impact is defined at Section 11017 and the Uniform Guidelines on Employee Selection and Procedures (29 C.F.R. 1607 (1978)) incorporated by reference in Section 11017(a) and (e). As used in this section, “adverse impact” has the same meaning as “disparate impact” as used and defined in the Equal Employment Opportunity Commission’s Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (Apr. 2012).
(e) Establishing Job-Relatedness and Business Necessity.
(1) If the policy or practice of considering criminal convictions creates an adverse impact for applicants or employees on a basis enumerated in the Act, the burden shifts to the employer to establish that the policy is nonetheless justifiable because it is job-related and consistent with business necessity. The criminal conviction consideration policy or practice needs to bear a demonstrable relationship to successful performance on the job and in the workplace and measure
the person’s fitness for the specific job, not merely to evaluate the person in the abstract. In order to establish job-relatedness and business necessity, any employer must demonstrate that the policy or practice is appropriately tailored, taking into account at least the following factors:
(A) The nature and gravity of the offense or conduct;
(B) The time that has passed since the offense or conduct and/or completion of the sentence; and (C) The nature of the job held or sought.
(2) Demonstrating that a policy or practice of considering conviction history in employment decisions is appropriately tailored to the job for which it is used as an evaluation factor requires that an employer either demonstrate that any bright-line, across the board conviction disqualification can properly distinguish between applicants or employees that do and do not pose an unacceptable level of risk and that the convictions being used to disqualify, or otherwise adversely impact, have a direct and specific negative bearing on the person’s ability to perform the duties or responsibilities necessarily related to the employment position or that an employer conduct an individualized assessment of the circumstances or qualifications of the applicants or employees excluded by the conviction screen.
(3) Bright-line conviction disqualification policies or practices that do not incorporate an individualized assessment and include conviction related information that is seven or more years old (measured from the date of disposition, release, or parole) are subject to a rebuttable presumption that they are not sufficiently tailored to meet the job-related and consistent with business necessity affirmative defense (except if justified by subsection (f) below).
(4) Before an employer may take an adverse action such as declining to hire, discharging, or declining to promote an adversely impacted individual based on conviction history obtained (e.g. through a credit report or internally generated research), the employer must give the impacted individual notice of the disqualifying conviction and a reasonable opportunity to present evidence that the information is factually inaccurate. If the employee establishes that the record is factually inaccurate, then that record cannot be considered in the employment decision.
(f) Compliance with Federal or State Laws, Regulations, or Licensing Requirements Permitting or Requiring Consideration of Criminal History. In some instances, employers are subject to federal or state laws or regulations that prohibit individuals with certain criminal records from holding particular positions or occupations or mandate a screening process employers are required or permitted to utilize before employing individuals in such positions or occupations (e.g., 21 U.S.C. § 830(e)(1)(G); Labor Code §§ 432.7, 432.9). Examples include, but are not limited to, government agencies employing individuals as peace officers, employers employing individuals at health facilities where they will have regular access to patients, and employers employing individuals at health facilities or pharmacies where they will have access to medication or controlled substances. Some federal and state laws and regulations make criminal history a determining factor in eligibility for occupational licenses (e.g., 49 U.S.C. § 31310). Compliance with such federal or state laws, regulations, or licensing requirements is a form of job-relatedness, is consistent with business necessity, and constitutes a defense to an adverse impact claim under the Act.
(g) Less Discriminatory Alternatives. If an employer demonstrates that its policy or practice of considering conviction history is job-related and consistent with business necessity, adversely impacted employees or applicants may still prevail under the Act if they can demonstrate that there is a less discriminatory policy or practice that serves the employer’s goals as effectively as the challenged policy or practice, such as a more narrowly targeted list of convictions or another form of inquiry that evaluates job qualification or risk as accurately without significantly increasing the cost or burden on the employer.
In other words:
Effective July 1, 2017: This background screening rule applies to public and private employers in California who have at least five employees, regardless of employees' work locations.
Employers are now prohibited from using criminal history in employment decisions if doing so would have an adverse impact on individuals, and:
a. the employer cannot prove such use is job-related and consistent with business necessity; or
b. the screening and hiring policy must be the absolute least discriminatory method for achieving the business need
The law also specifically prohibits employers from considering the following criminal records: (1) An arrest or detention that did not result in conviction
(2) Referral to or participation in a pretrial or post-trial diversion program
(3) A conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to law
(4) Juvenile records
(5) A non-felony conviction for possession of marijuana that is two or more years old
If you find that your criminal records are incorrect or incomplete and you would like to take action, you should contact the specific jurisdiction in which the records were originally filed.
Feel free to take a look at some of these resources for more information:
Live Scan Form
Application to Obtain Copy of Criminal History Record
Expunging Criminal Records
Petition for Dismissal
Order for Dismissal
Instructions for completing dismissal forms
All of the following are included in civil records: judgments, liens, evictions, family and small claims cases. If you would like to dispute a record, contact the court in which the record was filed.
In order to set a standard around hiring policies, the federal government has created the Fair Credit Reporting Act or FCRA to monitor and protect both employers and job seekers. With this law, individuals are protected from unfair workplace discrimination and data breaches of their private, sensitive information. Interested in learning more? Check out GoodHire’s 10-step process for legally obtaining background reports. Be sure to read the official FCRA full text or summary legal document for more details.
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