A background check generally occurs when a judge, employer, or police officer checks a person’s criminal record to review any crimes they have committed. Criminal background checks are often used to determine a person’s eligibility for a job or to ensure the safety of other persons who may be interacting with the person.

When a current or future employer uses a background check, there are clearly privacy issues that must be addressed. Each state has a different set of laws and penalties governing background checks for employment purposes.

What Are the Rules for Employment Background Checks in California?

As of January 2014, California’s laws regarding background checks for employment purposes have changed significantly. The California Labor Code forbids employers from asking about the following:

  • Arrests not leading to conviction
  • Conviction here means plea, verdict, or a finding of guilt
  • Crimes that have been expunged
  • Crimes that have been sealed
  • Crimes that have been dismissed
  • Crimes that resulted in a referral to any pretrial or post-trial diversion program

Employers are still free to inquire into the following:

  • Crimes resulting in conviction
  • Conviction here means plea, verdict, or a finding of guilt

It is also worth noting that these rules do not apply to a government agency, such as a police force, employing a peace officer.

This type of legislation is known as "ban the box," and is an effort to help job seekers with a criminal background reenter the workforce.

What Are the Consequences for Employers Who Violate These New Rules?

The penalties for asking questions into an applicant’s criminal background are not automatic and must be brought by the person whose background was investigated. If the job applicant’s background is unlawfully looked into, that person may:

  • Bring an action to recover from the employer actual damages, or $200, whichever is greater, plus costs, and reasonable attorney's fees.
  • An intentional violation of these laws entitles the applicant to treble actual damages, or $500, whichever is greater, plus costs, and reasonable attorney's fees.

To be clear, these fines may be costly to the employer. These fines are serious enough that the State of California has decided that an intentional violation of these criminal background laws is a misdemeanor.

Seek Legal Advice

If these new changes to the law are not addressed by an experienced California employment attorney, they have the potential to become a serious roadblock to companies. Likewise, if you feel that your background, and therefore privacy, has been unlawfully pried into, consulting an attorney will help ensure your rights are secured.