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Can You Pass a Background Check with a Misdemeanor?

Posted by Ronald D. Hedding | May 30, 2024

An employer will often conduct criminal history checks to identify people whose criminal history might affect their ability to perform responsibly and trustworthy.

Sometimes, a criminal conviction may be a huge red flag that shifts a hiring manager's perception of a potential employee. For example, suppose someone has several violent felonies on their criminal record.

In that case, the employer will typically decline to hire them, knowing they might pose a risk to customers, clients, or other employees. In most cases, criminal convictions considered high-risk indicators are felonies.

Thus, less severe law violations, such as misdemeanors, often cause confusion for employers and job seekers. For example, many employers are unsure whether a misdemeanor conviction should disqualify a job applicant.

At the same time, job seekers typically worry about whether their old minor offense from years ago will be a major obstacle to obtaining employment.

Misdemeanors are the less severe type of criminal activity that typically carries a maximum sentence of less than a year in a county jail. Misdemeanors never carry prison time and are often punished with only fines and probation.

Some of the most common misdemeanor crimes in California include domestic battery, DUI, drug possession, petty theft, simple assault, shoplifting, trespassing, and disorderly conduct.

Under our legal system, while misdemeanors are violations of the law, they are not considered serious enough to have someone's life permanently penalized, such as an inability to find employment. While felonies and misdemeanors are the two common law violations, there are also infractions, such as traffic tickets, which will not typically appear on a standard criminal background check.

What is a Background Check?

A background check is when a potential employer gathers information about a person's history, such as their criminal history. It's often called an employment background check conducted after someone submits an employment application.

In California, a background check will often show if someone was convicted of a misdemeanor or felony, such as common offenses like Vehicle Code 23152 VC driving under the influence (DUI) or Penal Code 243.4 PC domestic battery. Simply put, a background check is when a potential employer screens somebody's history, which can disclose the following:

  • Criminal history,
  • Criminal convictions,
  • Jail time and
  • Credit reports.

Employers can independently conduct a background check or hire a third-party reporting agency. While employers can receive information about somebody's conviction, some ban-the-box laws will limit whether prior convictions can be considered in their hiring decisions.

Under California law, a business is prohibited from accessing information on an arrest that did not lead to a conviction unless the arrest is still pending in court. Employers also can't access information on expunged or sealed convictions. Simply put, being convicted of a misdemeanor does not necessarily preclude you from obtaining work in California.

Will a Misdemeanor Show Up on a Background Check?

A common question is whether a misdemeanor conviction will appear on a background check in California, which could impact one's ability to obtain a job.

Suppose you were convicted of a first-time misdemeanor crime, and the judge gave you probation with no jail time. In that case, you probably want to know whether it will appear on an employer background check. The simple answer is yes. All misdemeanor and felony convictions can appear on a criminal background check for a while.

Usually, a criminal background check will also show pending criminal charges. If you were charged with a crime, whether a misdemeanor or a felony, that charge is technically part of the criminal record. Thus, if an employer runs a background search in the correct jurisdiction, such as in the county where you are facing criminal charges, those charges will appear on the background check report.

What Will Appear on Background Checks?

Your background check or a separate driving history background check could possibly show any of the following information:

  • Any past misdemeanor or felony criminal convictions from the background check date for the past seven years.
  • Traffic citations.
  • Negative housing information, such as an eviction.
  • Negative information on a credit report.
  • Workers compensation.
  • Schools you attended.
  • Miltary information.

What are Sources for Background Check Information?

Criminal convictions for misdemeanors and felonies for the past seven years are usually disclosed. The California background check laws allow parties to get information from numerous sources, such as the following:

  • public records,
  • DMV driving records,
  • court records,
  • arrest court records,
  • sex offender registries,
  • immigration records,
  • vehicle registration records,
  • social security records,
  • state licensing records,
  • credit report,
  • education records,
  • insurance claims,
  • tenant history,
  • workers' compensation records.

After an employer has gathered all the information from these sources, they will use it to review a job application and make hiring decisions. It's important to note that employers cannot get access to the following information:

  • Any arrest that did not end with a conviction,
  • Any arrest occurring over seven years ago.
  • Any arrest that resulted in a successful diversion program.
  • Any convictions expunged or sealed,
  • Certain marijuana crimes.

What Are California Laws on Fair Employment Opportunities?

Some laws in California have passed laws to promote fair employment opportunities, including those with a criminal history. Also, some changes ensure that misdemeanors are automatically sealed with no further criminal activity.

Misdemeanor Crimes in California

As noted, it's unlawful for an employer to obtain access to information on an arrest that did not lead to a conviction unless the criminal case is pending. Likewise, employers cannot obtain information on any convictions expunged or sealed.

State and federal laws prohibit employers in California from discriminating against applicants based on religion, race, gender, age, ethnicity, and sexual orientation.

In 2018, California passed the Fair Chance Act, also called the "Ban the Box" law (Assembly Bill 1008). It's designed to evaluate job seekers based on their qualifications and skills rather than their past offenses. This law prohibits employers from inquiring about an applicant's criminal history until they have made a conditional job offer.

The Fair Credit Reporting Act (FCRA) requires employers to get written consent before they conduct a criminal background check. They must also notify you if they deny employment because of information discovered in the check. The FCRA only applies to employees using a third party for background checks. It does not apply if they conduct them independently.

What is the California "Clean Slate Law?"

California has passed additional laws allowing the automatic sealing of criminal records, provided certain conditions are satisfied. AB 1076 and SB 731, known as California's "clean slate laws," have significantly impacted past convictions.

Suppose you were convicted of a misdemeanor. If there is no new criminal activity, the conviction will be automatically sealed after you complete probation or one year after you complete your sentence.

This law also automatically seals certain non-violent felonies four years after the completion of the sentence. These laws were passed and implemented starting in 2019 and became completely effective in July 2023.

If you complete your misdemeanor sentence and stay out of trouble, your crime will no longer appear on employer background checks. After your criminal record is sealed, you can answer "no" on applications asking whether you were convicted.

What is an Individualized Assessment of Applicants?

The employer must undertake an individualized assessment if a misdemeanor conviction appears on your record. This process means that employers must consider numerous factors before rescinding employment based on a criminal record, including the following:

  • Severity of the crime.
  • Nature of the offense.
  • The time that has elapsed since the crime.
  • The duties associated with the job position.

Notably, after this assessment, the employer can only rescind the conditional job offer if they can make a direct negative connection between the specific aspects of the conviction history and the inherent risks of the job.

Before deciding whether to hire you, the employer must allow you to dispute the accuracy of the conviction record or show rehabilitation or other mitigating factors. In other words, you will have a chance to explain your past and present circumstances. Contact our California criminal defense lawyers for more information. The Hedding Law Firm is based in Los Angeles, CA.

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About the Author

Ronald D. Hedding

What Makes Ronald Hedding Uniquely Qualified To Represent You? I've been practicing criminal defense for almost 30 years and have handled thousands of cases, including all types of state and federal sex crime cases. All consultations are discreet and confidential.