Employers' Rights

If you have a criminal conviction, convincing someone to hire you can be challenging. Even if you already have a job and are convicted of a crime, your livelihood may be at stake. Generally speaking, an employer has the right to ask for written consent to perform investigative consumer background checks, also called consumer background check, on their employees and applicants. You have a right to withhold your consent, but your employer may take adverse action against you for doing so.  Employers face certain legal restrictions when it comes to firing employees for criminal convictions discovered on consumer background check, but they can fire a current employee for a criminal conviction in certain cases.

The Specifics of What an Employer May Do

While employers can run a consumer background check on you, they are limited in what they can do if any they discover any criminal convictions in your past. Before taking adverse action against you, such as firing or suspending you, they must first consider the specifics of the offense. Under protocol from the Equal Opportunity Employment Commission, employers must first consider the nature and seriousness of the offense, the time that has passed since the conviction, and how these both relate to your position. This protocol pertains to most convictions, but employers are limited in what types of criminal background information they can inquire on.

Employers in California cannot:

• Ask about arrests that did not lead to convictions or seek records of such arrests
• Ask about pre-trial or post-trial diversion programs (also referred to as deferred prosecution)
• Ask about convictions that have been sealed, destroyed, or expunged
• Ask about certain minor marijuana convictions that are more than two years old

Employers can ask about most other convictions, but consumer background checks generally cannot report negative information that is more than seven years old. It's a good idea to request a copy of your consumer background check before you apply for jobs or after you are convicted of a crime so you know what employers will see. If an employer wants to take adverse action against an employee, they must demonstrate that it is for a legitimate business purpose and that the criminal conviction is job-related and could affect your ability to do your job.

Employees' Rights

Luckily, you have rights if an employer takes action against you because of information discovered in a background check. If you are fired because of something found on your consumer background check, you have a right to know the reason for being fired and know what agency provided the information to your employer. You also have a right to know what appears on your consumer background check and may request a copy of that information if you have been fired. Take advantage of this right to make sure the information therein is accurate. If it isn't, you have a right to dispute the information, and the agency must update or change your files.

A criminal conviction can make finding and keeping a job more challenging. Fortunately, you can take steps to protect yourself and your employment status. Cleaning your record can make a huge difference when it comes to employment. It can protect you from being fired and boost your chances of being hired. Most California employers—excluding some government employers—cannot inquire about a conviction that has been expunged. If asked, you can truthfully say you have not been convicted of a crime. Consider cleaning your record if you are concerned about disclosing your criminal conviction to your employer.

Speak with an experienced California criminal defense attorney if you want to clean your record. An attorney can assist you with the process of expungement step by step, and this can help you get your request for a dismissal granted as soon as possible. If you expunge a conviction, employers cannot ask for information about the conviction, and, once updated, your consumer background check will not display information about it either. Consumer background check companies, however, can take several months to update criminal records, so you should request a copy of your report after your conviction has been dismissed to ensure the information therein reflects the dismissal.

Are you facing criminal charges? Visalia area criminal defense attorney Christopher Martens can assist you with fighting your charges and help you achieve a favorable outcome. With over ten years of criminal defense experience, Mr. Martens has handled thousands of cases and has taken over 50 to trial. Attorney Christopher Martens has the skills and knowledge needed to defend your rights. Serving the Visalia and Fresno areas, The Law Offices of Christopher Martens can provide expert criminal defense counsel. Call our office at 559-967-7386 or email us at [email protected] for a free consultation.