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Will You Pass a Background Check with a Misdemeanor?

Posted by Dmitry Gorin | Oct 03, 2023

Let's review whether your misdemeanor conviction will appear on a California background check. One of the defendants' most significant concerns regarding convictions is how it will affect their job ability.

If you are convicted of a misdemeanor, a relatively minor offense, you might receive probation as an alternative to jail time, mainly if it's your first offense. But can that misdemeanor come back to haunt you on employer background checks?

Will You Pass a Background Check with a Misdemeanor?
In California, all misdemeanor criminal convictions can show on a background check for a time.

A background check is when an employer screens someone's history. They can disclose several issues, such as their criminal history, criminal convictions, jail time, and credit reports. It's often called an “employment background check.” Employers can conduct a background check independently or hire a third party.

A background check usually shows if someone has been convicted of a misdemeanor, such as a Vehicle Code 23152 VC DUI. Regarding employment applications, while employers can receive information regarding a conviction, ban-the-box laws limit when and whether prior convictions can be considered in hiring decisions.

So, the answer is yes; all criminal convictions (misdemeanors and felonies) can show up in criminal background checks, at least for a time.

However, California has implemented laws designed to promote fair employment opportunities, particularly for individuals with a criminal history—and recent changes in the law now ensure that misdemeanors are automatically sealed after some time with no further criminal activity.

Under California law, it is unlawful for an employer to gain access to information on an arrest that did not lead to a conviction unless there is a pending arrest. Employers cannot receive information on any convictions expunged or sealed.

State and federal laws prohibit California employers from discriminating against applicants based on race, gender, age, religion, ethnicity, and sexual orientation. Being convicted of a misdemeanor does not necessarily preclude you from obtaining work in California.

What are the Sources for Background Checks?

California's background check laws allow parties to gather information from numerous sources, such as the following:

  • arrest records;
  • court records;
  • sex offender registries;
  • DMV driving records;
  • vehicle registration records;
  • state licensing records;
  • immigration records;
  • credit reports;
  • education records;
  • public records;
  • workers' compensation records,
  • insurance claims;
  • tenant history.

Past criminal convictions for misdemeanors and felonies dating back seven years will often be disclosed. It's unlawful for an employer to gain access to information the following:

  • an arrest that did not lead to a conviction,
  • a conviction that occurred over seven years before,
  • a conviction where someone received a pardon;
  • an arrest leading to completing a diversion program;
  • convictions that were sealed or expunged.

After a company has collected the information from these sources, they will use it to review a job application and make hiring decisions.

What is the "Ban the Box" Law in California?

The Fair Chance Act, commonly known as the "Ban the Box" law (Assembly Bill 1008), was passed by California in 2018. The primary goal of this law is to ensure that job seekers are evaluated on their qualifications and skills first rather than their past offenses.

Under the "Ban the Box law, employers are prohibited from inquiring about an applicant's criminal history until they have made a conditional job offer. If a misdemeanor conviction appears on the record, the employer must then undertake what is known as an individualized assessment.

The individualized assessment process requires employers to consider several factors before rescinding a job offer based on a criminal record. These factors include:

  • The nature and severity of the offense;
  • The time elapsed since the offense and completion of the sentence; and
  • The specific duties associated with the job in question.

With this assessment, the employer can only rescind the conditional job offer if they can draw a direct and adverse relationship between the specific aspects of the conviction history and inherent risks in the job's duties.

However, before making a final decision, the employer must provide the applicant an opportunity to dispute the accuracy of the conviction record or demonstrate rehabilitation or other mitigating factors. This provision gives applicants a chance to explain their past and present circumstances.

What is California's "Clean Slate Laws?"

In addition to the above, California has instituted additional laws that allow for the automatic sealing of criminal records provided certain conditions have been met.

California's "Clean Slate Laws"
Under California's "clean slate laws," misdemeanors are sealed after you complete probation.

Under AB 1076 and SB 731, collectively known as California's "clean slate laws." if you're convicted of a misdemeanor, that record will automatically be sealed, effectively expunged, once you finish your probation or one year after you complete your sentence, provided no further criminal activity occurs.

The law also provides for the automatic sealing of certain non-violent felonies four years after completing the sentence. These laws collectively have been passed and progressively implemented starting in 2019 and have been made completely effective as of July 2023.

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

Once a criminal record has been sealed, you have the legal right to say that you have not been convicted of a crime—and even if an employer discovers your crime, they cannot legally deny you employment based on a misdemeanor offense that has been sealed.

What Are Some Examples?

EXAMPLE 1: John, a highly skilled IT professional with years of experience in network management, is currently on probation for a misdemeanor offense. John applied for a position at a tech company. Despite his current probation status, John's expertise and qualifications make him an excellent fit for a Network Administrator role, and he's given a conditional offer of employment.

Because his conviction is recent and he's still on probation, the misdemeanor shows up on a background check, at which point the firm conducts an individualized assessment. If there's no 'direct and adverse relationship' between John's misdemeanor and the duties of the Network Administrator role, the company must follow through and hire him.

EXAMPLE 2: Jane was convicted of a misdemeanor DUI offense three years ago and recently completed her probation. She has had no further DUIs or other arrests since. She applied for a job as a project manager. 

After making her a conditional offer of employment, the company runs a background check. Because Jane's misdemeanor was automatically sealed on completion of her probation, it will not appear on the background check.

You can contact our law firm for a case review by phone or via the contact form. Eisner Gorin LLP has offices in Los Angeles, California.

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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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