One of the most common questions I hear from my clients is: “Will my arrest or conviction show up on an employment or other background check, such as for a rental application?”

There is no one database that potential employers or landlords can access that provides all the criminal information about an applicant. Rather, what normally happens when a criminal background check is initiated, is that the applicant’s personal data (including past addresses) will be given to a third-party company that checks the applicant’s background for a fee. The background check can vary considerably between these companies—some offer low cost cursory background checks; some of the more expensive ones will complete a due diligence background check that may include all states the applicant has lived in and federal records. The information in these reports vary in their accuracy.

So, where does the background information come from? Depending on how thorough the background check is, the information is gathered through county court records (usually by a paid subscription service that provides this data to the background check company) and perhaps federal criminal court records.  For sensitive employment positions, such as banking or financial services, the criminal background check will be very thorough.

Potential landlords may be more interested in whether the applicant has any violent crimeon their record or is registered as a sex offender. California has a public database of convicted sex offenders who are required to register; the FBI also keeps a nationwide database on those who have been convicted of violent sex offenses or sex offenses against children. Legally, California landlords are not allowed to discriminate against potential residents with a criminal or sex offender background; practically speaking, they do.

Can potential employers and landlords legally use background check information? A California employer cannot ask the applicant about his or her criminal background prior to a conditional offer of employment. The employer can, however, look at the applicant’s criminal background and may deny employment based on a criminal background based on an individualized assessment that takes into consideration the nature of the job and the applicant’s job duties, nature and gravity of the criminal offense or offenses, and how old the conviction is.  Under the law, the employer is not allowed to consider an offense that did not result in a conviction.  A conviction that was dismissed (expunged) prior to the application may show on the applicant’s criminal record, but the employer cannot consider it.  As for arrests, employers in California are not allowed to consider any arrest record that did not result in conviction unless that arrest is still pending.

This law places safeguards against employment discrimination based on a criminal past. If an applicant is given an offer of employment contingent on the background check and then denied that employment, the employer must be able to justify why the applicant is not suited for the job due to his or her criminal record based on the individualized assessment criteria.

One important exception to all the above: Applicants for a job in a local, state, or federal agency or a job that requires state licensing are exempt from these safeguards.

What can you do?

If you were arrested or detained and no charges were filed, you should have that record sealed. Even though these records should not be considered on applications, they are still on the record and it is impossible to know if this record is actually considered by a potential employer or landlord.

If you were convicted of a crime, you may be eligible to have that conviction dismissed(usually referred to as an “expungement,” but this is a misnomer as the conviction still shows on the record but shows as “dismissed”). Most misdemeanor crimes and many felonies (if you were not sentenced to state prison) are eligible for a dismissal.

There are other avenues of relief, such as a petition for factual innocence, but these are less common and harder to obtain.

If you are concerned about your criminal record, Orange County criminal record defense attorney William Weinberg offers for a free consultation regarding your options. ContactMr. Weinberg at his Irvine office at 949-474-8008 or by email at bill@williamweinberg.com. You may be pleasantly surprised at how easy it can be to clean up your record.