A current or former offender can request a copy of their own criminal history record from the California Department of Justice (DOJ). The offender may not give their criminal history to an employer, and the DOJ will not process a request for a criminal history record from a third party, such as a landlord. Under certain circumstances, an employer or landlord may use a commercial service to perform a criminal background check.
An employer or landlord must utilize such a service in accordance with city and county laws regarding criminal background checks. They should be aware that records produced by a commercial service may contain numerous errors. If an employer or landlord relies on inaccurate information to reject an applicant, they could face legal action. An employer or landlord should be aware that in the state of California, criminal convictions can typically only be reported for seven years.
Public Access to Court Records
An individual, employer or landlord can visit a local courthouse to obtain official records about an offender’s court cases in that court. The courthouse may not have records relating to the offender’s cases beyond the county in which it sits. A person can get the court records by going to the courthouse and ask to look at paper records of look at electronic court records on a computer in the courthouse or over the internet. This last option is called remote access. A court may charge for printouts of court records.
Not all court records are public records. For example, a court may not allow people who are not parties in the case to view a record relating to a domestic violence case. The California Court of Appeal ruled in the case of All of Us or None v. Hamrick (2021) that an offender’s date of birth or driver’s license number cannot be used to identify individuals in an electronic search of the criminal index of court records.
Records From Law Enforcement Agencies
An individual is likely to be unable to obtain a complete criminal history record of a person from local law enforcement agencies such as the Los Angeles Police Department (LAPD) or the Oakland Police Department. A law enforcement agency may withhold information if the release would jeopardize an individual’s right to privacy. The LAPD specifically states on its website that it is likely to redact criminal offender record information.
Prohibitions on Renter Background Checks
Some California cities, such as Oakland, have prohibited rental housing providers from using the criminal history records of applicants in the advertisement, application, selection or eviction process. There are exceptions to this rule. For example, in Oakland, a landlord may use a criminal history record to evaluate a candidate for an owner-occupied unit such as a single-family home, duplex, triplex and Accessory Dwelling Unit.
A tenant who wishes to add a cotenant may also use a criminal history record to evaluate the candidate. A landlord should review the municipal regulations of their city or county before paying for a criminal history record of an applicant.
Employers and Criminal Records Search
California Labor Code Section 432.7 prohibits an employer with five or more employees from asking about or considering the conviction history of an applicant until after the applicant has received a conditional offer of employment. Further, California’s Fair Chance Act, which took effect January 1, 2018, prohibits an employer from considering, distributing or sharing information related to specified prior arrests, participation in diversion programs and convictions that have been sealed, dismissed, expunged or statutorily eliminated when conducting a criminal background check.
California law requires that a background check be related to the nature of the job that the applicant is seeking, and the employer must be prepared to show how the nature and seriousness of the criminal history and the time that has passed since the conviction relate to a hiring decision. If an employer determines that a candidate’s criminal history is a reason not to give them the job, the employer must notify them in writing of the conviction that led to the concern. The employer must give the candidate a copy of the criminal record and allow five business days for the candidate to respond before making a final decision.
Local Criminal History Record Request Rules
Some cities and counties have local ordinances that do not allow covered employers to rely on criminal history records. For example, San Francisco has a Fair Chance Ordinance (FCO) that is both a city and county ordinance. The FCO prohibits covered employers from asking about arrest or conviction records until after a conditional offer of employment. Covered employers include employers with a total of five or more employees worldwide and city contractors, subcontractors and leaseholders.
- California Courts: Access to Electronic Court Records
- California Department of Justice: Criminal Records - Request Your Own
- City of Oakland: Fair Chance Access to Housing Ordinance
- California Department of Justice: Frequently Asked Questions - Criminal Records - Request Your Own
- City of San Francisco: Fair Chance Ordinance
- Los Angeles Police Department: California Public Records Act
- Justia.com: All of Us or None etc. v. Hamrick (2017)
- California Labor Code: Section 432.7, Contracts and Applications for Employment
- California Civil Code: Sections 1786.10 - 1786.40, Obligations of Investigative Consumer Reporting Agencies
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.