Can Potential Employers See Pending Court Cases?

Anyone who’s an avid job applicant is fully aware that background checks are a standard part of recruitment. Unfortunately, more than half of job-seeking Americans lie on their resumes, so employers resort to outsourcing third party agencies to conduct full-on background checks on potential employees. For someone with a criminal or arrest record, a background check is just as dreaded as every other Monday morning; we hate it, we know it’s coming, and there’s nothing we can do but ride it out.

If you have a criminal or an arrest record, pending or otherwise, knowing a few things about background checks beforehand can help you wade into the job searching process prepared.

Who has access to your criminal history?

First off, not every single recruiter has access to your criminal history. Section 432.7 of the California Labour Code prohibits employers from merely demanding to see an applicant’s police or arrest records. Most employers use authorized third party agencies to conduct background checks on applicants.

Since criminal records are not public records in California, potential employers will often retain an FCRA authorized screening agency’s services. Screening agencies typically have access to databases with police records, credit reports, medical records, and so much more.

Now, you’re probably wondering if employers can access your history without your knowledge? Not quite. If you’re having second thoughts about revealing your criminal history to potential employers, you still have the option of refusing to be subjected to one.

According to the Fair Credit Reporting Act, employers must serve a notice stating that a background check may be required, and if so, they must also obtain an applicant’s consent to do so. The screening agency will then forward the background check results, also known as the “investigative consumer report” in legal language, to the employer.

What should show up on the report?

The Investigative Consumer Reporting Agencies Act (ICRAA) is another legislation regulating how employers can carry out background checks. Section 1786.18 of the ICRAA unequivocally states that only criminal convictions and open cases can be reported, not arrests that didn’t lead to a conviction.

California also has a 7-year limitation where agencies can’t disclose convictions that happened more than seven years ago. Similarly, if a job pays less than $75,000 a year, any civil judgments, sanctions, and disciplinary measures related to professional licenses should not be reported as well.

We wish to reiterate that this does not mean your records are sealed or expunged. These restrictions are only put in place to discourage discrimination and give job applicants a chance at a fair recruitment process. Unfortunately, your records, pending or not, aren’t barred from background checks unless you’ve taken curated steps to seal or expunge your criminal history. For all information on sealing or expunging criminal records or how to deal with employers seeing your open court case, please call us at (323) 529-3660 for a free consultation.