Category Archives: Criminal Records

New Guidance from California Demonstrates Potential Change in use of Criminal Records in the Hiring Process

California gets more explicit about the 2018 Fair Chance Act that aimed to help those with previous criminal background records get a better chance at getting a job. Recent amendments went into effect in October that will have a big impact on most employers in the State regarding the fair and proper use of criminal background checks in the employment screening process.

Recently California’s Department of Fair Employment and Housing (DFEH) issued a new guidance clarifying the states Fair Chance Act, as well as indicating a willingness to enforce updated policy. The action in California that highlights the potential of significant change to laws governing the use of Criminal History Records, and Hiring Managers and HR Departments across the country should take immediate note. Laws governing pre-employment background screening face potential change and a best practice remains to work with a well-qualified third-party pre-employment background screening agency in order to remain compliant with existing and potential law.

The new guidance issued by DFEH is designed to clarify protections for workers with a criminal background record.

From JDSupra.com on October 15, 2020:

Since its implementation on January 1, 2018, The Fair Chance Act has been a source of questions for California employers. Also referred to as “banning the box,” Government Code section 12952 makes it illegal for most employers in California to ask about the criminal record of job applicants before making a conditional job offer.

The Department of Fair Employment and Housing (“DFEH”) recently amended the regulations implementing the law, with an effective date of October 1, 2020 jdsupra.com/legalnews/dfeh-updates-ban-the-box-regulations-16361/

Modification and clarification guidance, such as the one issues in California by DFEH, can be common across the country thus creating an ongoing change to law. Hiring managers are challenged with remaining compliant with existing law. As ban-the-box and similar laws in big States like California take effect, the whole country should be evaluating the efficacy of such laws and whether or not they want to participate in such a movement.

To read more about this subject read recent press release: California’s New Guidance Highlights Potential Change Affecting Hiring and Criminal Records

Criminal Records and the Trump Era

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In recent years the use of criminal background records in employment screening and tenant screening have been making headlines across the country.  The Obama Administration attempted considerable efforts in reforming the criminal justice system.  Also the Equal Employment Opportunity Commission (EEOC) has put forth a guidance on the fair, lawful and legal use of criminal records as part of the employment screening process.  Additionally “ban-the-box” legislation has been adopted in many States and jurisdictions across the USA.  All these changes and efforts are meant to discourage and even eliminate discrimination in the hiring process.  They also seek to give individuals with a criminal record a second chance at reintegration with mainstream society by getting a fair chance at employment along with being able to secure decent housing.

Now under the new Trump Administration criminal records continue to be in the spotlight.  Under the authority of the President Immigration and Customs Enforcement or ICE has been tasked with greater urgency in deporting illegal aliens with criminal records.

From the Washington Examiner (Feb. 12, 17):

Stephen Miller, the president’s policy director, said, “the cases that I’m familiar with…have to do with removing criminal aliens, individuals who have criminal charges or convictions against them. And that’s what’s been taking place all across the country. And the effect of that is going to be saving many American lives, American property and American safety. (1)

A criminal record can follow an individual for years and create a challenge for finding employment as well as housing.  Certainly, evidence of a criminal record for someone living inside the United States will cause immediate expulsion.

Swift changes in US Law by Executive Order by the Trump administration should be an eye opener for all Human Resource personnel and hiring managers to review and perhaps update their employment screening policies.  How this new administration will affect background screening and the use of criminal background checks is still unknown but making sure hiring policies and procedures are up to date and complaint is certainly worth the effort.  It is widely recommended that companies and organizations work with a professional third-party employment screening company during this process as it is considered a best practice in this industry.

To read more about this subject read recent press release found at: http://www.criminalbackgroundrecords.com/news/2017-02-15-Criminal-Records-at-Home-and-Abroad-in-the-Trump-Era.html

New California Law to Protect Juvenile Criminal Records

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New California law protects people by prohibiting the use of certain juvenile criminal records during the pre-employment screening process.  Governor Jerry Brown signed AB 1843 into law in September 2016.  It is typical that California is the State leading the way in protecting the rights of individuals as they have been in the past.  With 1843 passed more states across the country will take notice and perhaps follow California’s lead.

The new law amends the labor code broadening the types of criminal background records that employers can see.  In this case it is prohibiting employers from inquiring and considering the use of juvenile criminal records in the hiring process.  When the jurisdiction was a juvenile court and the criminal records apart of the juvenile offense history then those records are considered off limits to employers and they may not use those records as part of their hiring decision process.

AB 1843 updates the labor code in regards to the use of juvenile criminal records in the hiring process.

From SHRM.com, the leading Human Resources industry group (posted Oct. 04, 16):

A.B. 1843 amends the labor code to broaden the types of “off limits” information that employers may not consider by prohibiting employers from inquiring about and considering information concerning or related to “an arrest, detention, process, diversion, supervision, adjudication, or court disposition” that occurred while the applicant or employee was subject to the process and jurisdiction of a juvenile court (juvenile offense history).

The bill also excludes from the labor code’s definition of “conviction” an adjudication by a juvenile court or any other court order or action taken with respect to a person who is under the process and jurisdiction of a juvenile court.  shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/california-juvenile-records-.aspx

As new laws such as 1843 are passed across the country it is clear that employers need to take note of such changes and make any necessary changes to their employment screening practices in order to stay compliant with an ever changing legal landscape.  As California has taken the lead on making it easier for individuals with a juvenile criminal past to get a job by prohibiting employers from using this information, it is in step with a national movement to clear the slate for adult past offenders and open the door for those with a criminal past to achieve gainful employment and be successfully integrated into a productive and crime free society.

To read more about this subject read recent press release.

Laws Changing on Use of Criminal History Reports

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All across the country lawmakers are changing laws pertaining to the use of criminal history reports in the employment screening process. Recently the city of Portland Oregon enacted ban-the-box laws for employers making them remove questions concerning criminal history from their initial job applications. It is important that employers keep current with new laws governing the use of criminal background checks in the hiring process. A good way to stay ahead is to partner with a third party background screening company who is well versed in the laws pertaining to the use of criminal history reports in the employment screening process. As more city and State governments enact ban-the-box laws the employers within those jurisdictions need to adhere to these new laws and understand how it affects their hiring process. Employers need to understand when they are allowed to run a criminal background check in the hiring process and when they are not allowed to. Most new ban-the-box related legislation forbid the asking of criminal history at the initial application process and typically allow for a background check after an interview when the job applicant has qualified for the job in question. To learn more about ban-the-box legislation and when criminal history checks are allowed in the employment screening process read recent press release found at: http://www.criminalbackgroundrecords.com/news/2014-9-11-Criminal-History-A-Public-Document.html

 

Criminal Records Expungement

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The role, process and reasons for expungement within the criminal background check industry,
along with why it uses and needs the criminal record expungement option.

An expungement proceeding is a legal action in which someone with a criminal conviction record gets approved by a court judge to have their criminal record sealed or destroyed.  The current dictionary definition of an expungement is “The process by which record of criminal conviction is destroyed or sealed after the expiration of time.”

There is not one universal way to get criminal conviction records expunged.  The laws surrounding expunging records from file are different from state to state and jurisdiction to jurisdiction.  The process itself is not a criminal proceeding, but a civil action where the person wishing to eliminate a certain criminal record goes before a judge as the plaintiff, and then makes a request for their criminal record to be removed as a public record.  Even if the request is granted the criminal record in question would still exist to certain government eyes, but would no longer be of public record.  To the person getting the expungement, they can go on as if the criminal record never existed and legally does not have to tell any future employer or anyone else about the expunged criminal record.  Criminal records are indeed public records as criminals are not a protected class and their criminal activity (crimes for which they have been convicted of in a court of law) remains available to the general public.

Most often, once a criminal record is sealed or expunged, all records relating to the court case get removed from public record.  In many instances online criminal data providers may still show expunged records in their repositories.  They do of course (by law) have to delete these records, but must be given notice first.  After a judge has formally expunged a criminal record on an individual, that person can then legally deny or fail to acknowledge ever having been convicted with that crime.  This means that the person whose record is expunged can treat the event as if it never occurred.

Eligibility for an expungement of a criminal conviction record is based on the current law of the jurisdiction/court in which the criminal record was created. The person to whom the criminal record is attached to is usually the only one that can petition for an expungement. In order to qualify for consideration of an expungement the individual in question must meet certain conditions before a formal hearing can take place.   Here are some general conditions usually in place in any US State or jurisdiction:

  • The seriousness of the offense convicted of and the type of offense committed (felony vs. misdemeanor etc.)
  • Completing satisfactorily the terms of any previous sentence
  • The amount of past incidents that are on your file
  • You must have completed all probation requirements without any incidents
  • Satisfying a certain waiting period between the incident and expungement
  • Cannot have any incidents that interfere or intersect with the criminal record in question
  • Cannot have any other ongoing or pending criminal investigations or proceedings at the time of request

CriminalBackgroundRecords.com gets requests all the time asking to remove criminal conviction records from its system and to permanently delete them from all source data feeds containing the criminal record.  CriminalBackgroundRecords.com always complies with these requests as long as they are backed up with the appropriate legal documents.  Only a United States judge can grant an expungement.

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Understanding common criminal industry terms and what they actually mean…

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Police Records vs. Criminal Records vs. Background Checks vs. Criminal History
vs. Conviction Records vs. Court Records vs. Arrest Records

What does it all mean?  Are the terms above used interchangeably? Or, are they different?  Is a police record the same as a criminal record?  Are arrest records listed in an online criminal report?  When you are looking up someone’s criminal history, are you really looking for a background check?  And, if so, what information do you think you’ll get back from that criminal background investigation?  CriminalBackgroundRecords.com thinks it is important to break down these common terms, and better explain what to expect in the background search process, as well as what to expect when viewing a criminal background record.

When looking for a criminal background history, the most commonly used search terms are as follows…

Police Records | Criminal Records | Criminal Conviction Records | Background Check
Arrest Records | Criminal History | Criminal Background Search | Court Records
Felony Records | and Corrections Records

First, we will break down some common phrases used in the background retrieval industry and explain both their “real meaning” and their “commonly understood meaning”.  We will parse out the real and the actual from the rumors and the hearsay.

We want to help breakdown these terms to their core meaning in order to better educate the large market of people looking to perform some kind of background check.  CriminalBackgroundRecords.com wants to deepen its customers and potential customers understanding of criminal records, how they are obtained, how they are stored, how they are searched, and what to expect in your criminal report search results…

Since we currently only cater to the US market, we will begin with US law.  In US law, “a conviction is the verdict that results when a court of law finds a defendant guilty of a crime.”  This means that if someone was arrested by the police for a supposed crime, then went to court, and then was found, “Not Guilty” than this record simply stays an “arrest record” NOT a criminal record.  Using an arrest record as part of a decision to hire, fire or otherwise harm or harass an individual is wrong, and also opens you up to huge legal risks.

Criminal histories/backgrounds are maintained and updated by many varying sources.  Typically, criminal history information is first generated by law enforcement agencies such as your local police departments.  Local police departments, sheriff’s offices, and other police agencies usually maintain their own internal databases. On the state government level, state police, state troopers, highway patrol, correctional agencies, and other law enforcement agencies also maintain separate databases. Law enforcement agencies often share this information with other similar enforcement agencies and this information is usually made available to the public in various ways.  Again, as discussed in the paragraph above, a police record may just be an arrest record, and until an actual criminal conviction for say a felony offense is made, there is no criminal record.  Making decisions solely on arrest records is not a good idea.

Sex Offender Records are considered Criminal Records
Registered sex offenders have information about their crimes readily available in state sex offender registries.  With each instant statewide or national criminal record search, CriminalBackgroundRecords.com includes a free national 50-State sex offender check.  That means that whether you run a criminal search in Texas, Florida or the entire US, you will get a national sex offender check in addition to a criminal check in Texas, Florida or the entire country.  All of CriminalBackgroundRecords.com instant criminal searches come with a free national sex offender check.

The Department of Correctional Services in many states make criminal records available to the public, and are certainly included as part of a state or national criminal search with CriminalBackgroundRecords.com.  In most cases, juvenile records/files are protected, and their criminal information is typically sealed and not made available to the public.  Correctional information will tell you if someone has served time in prison, currently are incarcerated as inmates, physical characteristics and of course their current status.  CriminalBackgroundRecords.com will give you correctional information, in all our search types, wherever it is available.

State Government
Some states have official “statewide repositories” that contain criminal history information contributed by county, municipal, and other courts within the state.  Court records are the best source for criminal case information concerning an individual.  These state repositories are usually accurate if the state requires supervision of the uploading of criminal data from the local courts (we hope this will be the norm soon). Some states make reporting to a central repository a voluntary activity.   With each state having differing criminal record uploading procedures or no criminal record uploading at all, the information obtained from these repositories can be incomplete.  However, with that said, there have been huge positive steps made in this area of criminal history searching, and for the near future, this means of acquiring and searching criminal records at the state level is getting better and better.

Federal Government
The federal government maintains extensive criminal histories and acts as a central repository for all agencies to report their own data.  The NCIC (National Crime Information Center) is one such database. Generally, and with few exceptions, the records compiled by the federal government in the NCIC are not made available to the public. Some websites and criminal data re-sellers claim to offer an NCIC record search.  These claims are most always fraudulent.  Before ordering a criminal report online, be sure to read the description of the search you are ordering prior to placing your order.  If a company or website does not reveal the description of the search you are interested in ordering, it is probably best to stay clear from ordering from that provider.  The rule of thumb on this is simple; if clear, up to date, descriptions of a criminal search are not available, then that provider is most likely using an old, incomplete database that may or may not have the criminal data you are looking for.

What are the “Terrorist Database Background Check” and “Most Wanted Search??”

All of CriminalBackgroundRecords.com instant criminal checks include a free terrorist database search and “most wanted” list search.  Below is the breakdown of what these two free criminal searches are and what to expect in your search results.

Terrorist Database Background Check:
We check the Specially Designated Nationals and Blocked Persons list maintained by the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of Treasury with every criminal search. OFAC administers and enforces economic and trade sanctions based on United States foreign policy and national security goals against targeted foreign countries, terrorists, international narcotics traffickers, and those engaged in activities related to the proliferation of weapons of mass destruction. As part of its enforcement efforts, OFAC publishes a list of individuals and companies owned or controlled by, or acting for or on behalf of, targeted countries. It also lists individuals, groups, and entities, such as terrorists and narcotics traffickers designated under programs that are not country-specific. Collectively, such individuals and companies are called “Specially Designated Nationals” or “SDNs.” Their assets are blocked by law and American individuals and companies are generally prohibited from dealing with SDNs. Results have full name, date of birth if known, address, country, title, program, remarks like AKA’s. These records are screened individually and carefully, and reported to the proper law enforcement entities when a match is made.

Most Wanted Criminal Search:
Comprised of several state agencies most wanted such as: Top Ten FBI Most Wanted, FBI Most Wanted Fugitives, US Marshals Most Wanted, US Marshals Major Cases, Alabama Department of Public Safety, Mississippi Department of Public Safety, Kansas Most Wanted, AFT Most Wanted, US DEA Wanted Fugitives, DTIC Fugitive Top List, US Secret Service Most Wanted, Americas Most Wanted, Connecticut Department of Public Safety and Texas Most Wanted.

CriminalBackgroundRecords.com hopes this article helps its browsers and users become more educated in the criminal data industry, and more informed as to what exactly to expect in a criminal report, and why a criminal report from one company/website can differ from another company/website.