Legal Use of Misdemeanor Records in California Hiring

by Thomas C. Lawson, CFE, CII

I’ve been getting a few inquiries about a statement that was made during the PIHRA Legal Update wherein it might be misinterpreted that it is illegal to use misdemeanor records in California in the hiring process.   In fact, the law is clear:

432.7.  (a) No employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction, or information concerning a referral to, and participation in, any pretrial or post-trial diversion program, nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring, promotion, termination, or any apprenticeship training program or any other training program leading to employment, any record of arrest or detention that did not result in conviction, or any record regarding a referral to, and participation in, any pretrial or post-trial diversion program.

As used in this section, a conviction shall include a plea, verdict, or finding of guilt regardless of whether sentence is imposed by the court. Nothing in this section shall prevent an employer from asking an employee or applicant for employment about an arrest for which the employee or applicant is out on bail or on his or her own recognizance pending trial.

1786.18.  (a) Except as authorized under subdivision

(b), an investigative consumer reporting agency may not make or furnish any investigative consumer report containing any of the following items of information:

(1) Bankruptcies that, from the date of the order for relief, antedate the report by more than 10 years.

(2) Suits that, from the date of filing, and satisfied judgments that, from the date of entry, antedate the report by more than seven years.

(3) Unsatisfied judgments that, from the date of entry, antedate the report by more than seven years.

(4) Unlawful detainer actions where the defendant was the prevailing party or where the action is resolved by settlement agreement.

(5) Paid tax liens that, from the date of payment, antedate the report by more than seven years.

(6) Accounts placed for collection or charged to profit and loss that antedate the report by more than seven years.

(7) Records of arrest, indictment, information, misdemeanor complaint, or conviction of a crime that, from the date of disposition, release, or parole, antedate the report by more than seven years. These items of information shall no longer be reported if at any time it is learned that, in the case of a conviction, a full pardon has been granted or, in the case of an arrest, indictment, information, or misdemeanor complaint, a conviction did not result; except that records of arrest, indictment, information, or misdemeanor complaints may be reported pending pronouncement of judgment on the particular subject matter of those records.

Criminal Records Reported for 7 years?

Q: Background checks will only reflect history back 7-years, correct? Is that regardless of the “crime” even if there are felonies on the record, or are there exceptions?

A: Well, there are a number of screening companies that ignore California Law , following only the Federal law which has lifted the time requirement.  California is special in that it maintains a 7-year reporting limit on convictions, and a violation of that rule is a biggie!

One other thing that is nebulous, as a practice in all states is understanding the “full adjudication” component of reporting criminal convictions.

Generally, it is mistakenly believed that the date of the conviction is what anchors the reporting date limit, but that is not correct.  Actually, what is permissible is the reporting  of convictions that antedate “full adjudication” by the 7 year period, not necessarily 7 years from the date of conviction.

That means, simply that if you are convicted of a crime on January 1, 1990, say for murder, and you serve 20 years, being released from prison, on January 1, 2010 that conviction is reportable since you were released from the court’s jurisdiction within the 7 year statutory reporting period.

Now, that can even extend further, if there is parole involved the way we at APSCREEN interpret the law is that a conviction is reportable 7 years from the date that the convicted party is released form court custody, meaning not only have they been released form prison, but have completed all court requirements including parole, and in many cases not until restitution is complete, IF the restitution is part of the release conditions from the court.

There are pitfalls to that, as well, since many screening firms mistakenly believe that the reporting period can actually be until 7 years from the date that the convicted person’s civil rights are restored, but that is also incorrect, as civil rights restoration is not automatic, it is a function of the person requesting that the rights be restored, and is not tied to any jurisdictional custody dates, or to the full adjudication date, or the date that the person was completely and unconditionally released from the courts custody and jurisdiction.