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Conducting Criminal Record Checks in California

Filed under Office & HR.

Employers in California are permitted or required to conduct criminal record checks in accordance with these rules.

In California, employers are not only restricted from asking an applicant about any arrest that did not result in a conviction, but are also prohibited from seeking the information from any other source.

Further, state law prohibits employers from using the information as the basis for making employment decisions about applicants, except that an employer may deny employment to an applicant with a criminal record if there is a legitimate business purpose for doing so.

Employees and job applicants may be asked about an arrest for which the person is out on bail or on his or her own recognizance pending trial.

Employers may inquire about arrest records when applicants are applying:

  • for criminal justice positions
  • to operate businesses on public lands
  • for jobs with access to patients, drugs or medication

Employers may obtain conviction and arrest records from the Department of Justice for any prospective employee who applies for a license, employment or volunteer position that would involve supervisory or disciplinary power over minors and others.

Employers are required to inform parents or guardians, at least 10 days prior to the start date, of prospective employees or volunteers who have a criminal record reflecting sexual offenses, revealed through a criminal background check with the aid of fingerprints, and will have supervisory or disciplinary duties over minors.

Registered sex offenders who have committed crimes against children under the age of 16 are prohibited from employing minors or working near them. Any person convicted of a sexual offense involving a child 15 years old or younger is prohibited from being an employer or an independent contractor where he or she would have direct, unaccompanied contact with minors on more than an occasional or incidental basis.

Registered sex offenders who apply for jobs that involve physical contact with children are required to disclose their registration status to prospective employers.

Other fields where criminal background checks are required are:

  • education
  • health care
  • security

Fingerprinting and criminal history background checks are required, but employers may not seek information about an applicant's arrests that did not result in conviction.

When Fingerprinting is Required or Permissible

Fingerprinting is required in California of those whose contact with community care facility clients and children in day care facilities may pose a risk to the health and safety of the clients or children.

Fingerprints may also be requested from an applicant for employment or from a director, officer or employee of a bank, holding company or bank subsidiary for purposes of discovering the existence and nature of any criminal records, but only with the consent of the person affected.

The Electronic Recording Delivery Act of 2004 specifies that a person cannot be a computer security auditor or be granted secure access to an electronic recording delivery system if he or she has been convicted of a felony, has been convicted of a misdemeanor related to theft, fraud or a crime of moral turpitude, or if he or she has pending criminal charges for any of these crimes. All persons entrusted with secure access to an electronic recording delivery system must submit fingerprints to the Attorney General for a criminal records check.

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