Canyon Country, CA asked in Employment Law for California

Q: I have a job offer of $85k in California, based on salary will the company run a 10yr background check?


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2 Lawyer Answers
Maurice Mandel II
Maurice Mandel II
  • Newport Beach, CA
  • Licensed in California

A: Thanks for using Justia, and a good question. There is no legal standard for the type of background check a company runs, however, by posting on this website which can be monitored by the company and its Background checker, you have brought attention to your problem. You might have highlighted this for them where they would not have seen it otherwise. You must be very careful about what you put on the internet, it is forever and goes to everyone.

Neil Pedersen
Neil Pedersen
  • Westminster, CA
  • Licensed in California

A: The salary level is not the thing that would determine if an employer will do a background check. Each employer is different unless you are seeking employment in an industry that would require background checks.

Any company using a commercial background check company will only get criminal conviction data reaching back 7 years. However any company doing its own background check can look back as far as it wishes. Of course, all bets are off when you apply to work in a law enforcement or national defense industry job. The get to look back forever and they can use arrest information as well.

Within the last few years, California enacted the Fair Chance Act, also called the Ban the Box law. Under that law, it is unlawful for employers with at least five employees to ask about or consider the conviction history of an applicant before the applicant receives a conditional offer of employment, and consider any of the following while conducting a criminal history background check in connection with any application for employment: (a) an arrest that did not result in a conviction, subject to limited exceptions, (b) referral to or participation in a pretrial or posttrial diversion program; and (c) convictions that have been sealed, dismissed, expunged or statutorily eradicated pursuant to law.

Consideration of the applicant’s criminal history will be permitted only after the employer has made a conditional offer of employment. Once that offer has been made the employer cannot deny an applicant a position solely or in part because of conviction history until the employer performs an individualized assessment. This assessment must justify denying the applicant the position by linking relevant conviction history with specific job duties of the position sought. In particular, the assessment would have to consider (1) the nature and gravity of the offense and conduct, (2) the time that has passed since the offense or conduct and completion of the sentence, and (3) the nature of the job held or sought.

Once the employer makes a preliminary decision that the applicant’s conviction history is disqualifying, the employer must notify the applicant of this preliminary decision in writing. This written notice must (1) provide the written notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer, (2) include a copy of the conviction history report, if any, and (3) provide an explanation that the applicant has the right to respond to the notice within at least five business days, and that the response may include submission of evidence challenging the accuracy of the conviction record, or evidence of rehabilitation or mitigating circumstances or both.

The employer cannot make any final determination based on conviction history during this five business day period. If the applicant timely notifies the employer in writing that they are disputing the conviction history and is taking steps to obtain evidence to support this, the employer must provide five additional business days to respond to the notice. The employer must also consider any additional evidence or documents the applicant provides in response to the notice before making a final decision.

If the employer decides to deny an applicant based on the conviction history, the employer must notify the applicant of this in writing, and include a notification of any existing procedure the employer has to challenge the decision, as well as notification of the applicant’s right to file a complaint with the Department of Fair Employment and Housing.

If you are denied the job move very quickly to preserve your rights under this law.

Good luck to you.

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