Apparently different labor lawyers and criminal lawyers have a conflict in agreeing what that section means. Technically, a court file is public record and anyone can go see it, share it. How does it prevent a background check company from not reporting a dismissed criminal case to the employer doing a background check? I have read the code section and I am not clear how can that code section even be valid if on one end the court file is like open book for anyone to read. Can some lawyer clarify what prevents the BG check companies from not reporting dismissed cases? Just to clarify, this is a situation where there was no diversion, or 1203.4, straight dismissal
Employment / Labor Attorney
The idea behind the statute is that in the United States, people are considered innocent (or at least, not guilty) unless actually convicted of a crime. Supposedly, an arrest say nothing about a person's relationship to a crime.
But probably no lawyer alive believes the law is always consistent or that it makes complete sense. Our legal system is imperfect and doesn't even try to be perfect. One result is that although an employer cannot ask an applicant if he or she has ever been arrested (as opposed to convicted), the employer is perfectly free to get that same information from another source, whether that other source be a background check company, a newspaper, a Google search, or any other source.
There are different levels of background checks. Background checks can be superficial or can be detailed and intensive. It all depends on what the employer wants to pay for. Intensive background checks are more likely in certain kinds of jobs, and the areas investigated may vary with the type of job involved. Here is a brief overview:
In California, private and public sector employers and state licensing agencies most often use the California Live Scan (CLS) for a criminal background check. The CLS is inexpensive and takes only about 72 hours. You can request your own CLS check by providing your fingerprints and the $25 processing fee to the California Department of Justice, and following the instructions here: http://oag.ca.gov/fingerprints/security.
In all states, court records are a common source of information for background checks. These records are open to the public and anyone can gain access to them. Many court records are available on the Internet and can be found easily and without charge. If you have been a party in a lawsuit (plaintiff, defendant, appellant, respondent, complainant, etc.), that information will show up in this kind of background check.
If an employer conducts a criminal background check, it will probably reveal all adult arrests and convictions for misdemeanors or felonies. Other related information will show up, too, such as diversionary programs, pre-trial intervention, conditional discharges and more. In some states, part of this information can be removed from public records by a process called expungement. Not all criminal records can be expunged. In California, there is no option to expunge criminal records. You may be able to set aside the judgment per Penal Code section 1203.4 or perhaps seal the record per Penal Code section 851.8. These options should be discussed with an attorney in a confidential meeting.
Expect that anything easily available in the public records will show up in a background check. This includes bankruptcies, residential property ownership, names of officers of corporations, and more.
Also, a lot of information can by found by a simple Google search. Try searching for yourself on Google. Put your name in the search box within quotation marks. Do a separate search for each nickname you have. For example, if your name is Oliver Wendell Holmes, you might search for yourself under all these names:
"Oliver Wendell Holmes"
Finally, background checks may contain incorrect information. For example, many employers use a service to conduct background checks; some of these services operate outside the country and may have little incentive to ensure accurate results. Also, some services arrange information in a confusing or misleading manner. Plus, clerical or other errors interfere with accuracy. If an employer conducts a background search on you and finds inaccurate information, you will probably never know and never have the opportunity to correct it. You just won’t get the job. For this reason, you may want to purchase a good-quality background check on yourself to see what is out there and what you need to do to correct information at the source.
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Administrative Law Lawyer
As I read your question, you are troubled by the artificiality of the situation in which the law only seems to make off-limits to prospective employers info re arrests not leading to conviction. It is manifestly obvious that this info is available to prospective employers from a variety of public records sources and, in fact, commercial vendors are by and large wholly uninhibited and unrestrained in reporting the "prohibited" info -- along with other non-prohibited info -- to their clients for use in employment processes. That is, in fact, the default practice in this service sector.
You are quite right that it doesn't harmonize. Here is why, IMHO:
Under the law there is a meaningful distinction between asking for disclosure or production of specific prohibited information and coming into possession of that info by looking at public records. Under the law there is a meaningful distinction in the employer using or relying on prohibited info in making an employment decision, and "inadvertently" coming into possession of that info as part of a larger non-prohibited record. And there is, of course, a significant and meaningful distinction between statutory schemes that would make certain information contraband, where mere knowledge or possession is a violation of law, or even statutes that would prohibit providing a client with a copy of an unedited un-redacted public record, as distinct from statutes that limit the searching out and use of specific narrowly defined info drawn from that public record.
Given these distinctions enabled by the law, is the legislature's intent re §432 enabled or ensured by the current statutory skein? No. Is there more that could and should be done. Certainly, beginning with the fact that almost never are prospective employers required to state or even document or record the grounds of denial of employment to any applicant.
Virtually every major vendor who provides "background checks" for pre-employment purposes provides to their clients the applicants' full public criminal records. Many of these firms act outside the geographical boundaries of California or even the US. That tends to limit legal enforcement and regulation all by itself. The written public record materials that they provide are then decorated with long and accurate statements of the laws and disclaimers. That, too, makes difficult enforcement re statutory prohibitions against use with a specific intent or purpose. Everyone in the prospective employer's loop knows what to state in the event of a complaint or challenge.
I am sorry that an accurate response here has to be so patently cynical. In truth and in practice, what I have described is the tip of the iceberg. Employers who want to be able to know applicants' entire histories, including arrest and non-conviction data, have available many not-unlawful ways to arrange their business and hiring practices to enable that capability. And, in my judgment, the legislature is well aware of the shortfall in implementation of legislative policy in this area of employment processes.
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