Criminal Background Checks and Job Searches
By Jay Peterson, CILS Sacramento office Senior Staff Attorney
Communities of color experience disproportionate contact with the law. (Read: racial profiling.) This excessive law enforcement contact results in a similarly disproportionate number of criminal records in the form of arrests, custodial detentions, and convictions. Employers use these records to deny people of color jobs. This means criminal records are used to deny a disproportionate number of Native people jobs. Any Native person can attest to this collective experience in the job market. Today, however, criminal records should not deter anybody from applying for a job in California.
Social science research makes it abundantly clear that criminal records present a considerable barrier to gainful employment. Criminal records provide easily accessible but arbitrary screening mechanisms for employers when they are evaluating potential hires. More often than not, disclosure of a criminal record prompts the prospective employer to disqualify a job applicant automatically and to discard an employment application altogether.
As a screening mechanism, criminal records artificially limit individual job prospects and earnings potential but are often justified on the assumption these records predict future job performance. Criminal records are not reliable predictors of future job performance. An extensive study of United States military hiring practices shows that there are no measurable differences in attrition rates based upon poor work performance between military enlistees with and without criminal records. (1)
Race only compounds this bias. The “race effect” in the job market is maybe even more powerful than the impact of criminal records in suppressing employment in communities of color. In one study, for example, white job applicants with criminal records were more likely to receive job offers than black applicants without criminal records. (2)
Taken together, race and criminal records create a nearly insurmountable barrier against finding work. Fortunately, California law provides some ways to clear this hurdle.
Conviction dismissal (expungement) and arrest sealing are both legal options in California that generally insulate conviction records from consideration in work-related decisions—hiring, firing, and promotion. The Fair Chance Act of 2018 provides additional legal protections to job seekers with criminal records. (3) This California law includes some key features:
- Eliminates the use of criminal records as a screening mechanism
- Applies to employers with more than five employees
- Prohibits employers from asking about job applicant criminal records before making a job offer, and employers need your consent to check your records
- Prohibits job applications from containing questions about criminal records
- Prevents employers from considering arrests that did not result in convictions, diversion program participation, and convictions that have been sealed or expunged
- Allows challenges to adverse decisions based on your record within one year
CILS believes that Native job seekers with criminal records should review a copy of their criminal conviction abstract (RAP sheet) before they begin the job interviewing process. (4)
We also believe that credit reports should be reviewed before the job interview process begins. These reports can contain criminal record histories in addition to credit histories and can be obtained once per year without affecting credit ratings. (5)
Natives with questions about criminal histories and employment can contact CILS’ Native American Record Clearing (NARC) Project through our Sacramento Field Office by calling toll free (800)-829-0284 before they begin their job searches.
- “Does a Criminal Record Predict Worker Performance? Evidence from One of America’s Largest Employers,” Lindquist, J. H., Pager, D., Strader, E., Social Forces Volume 96 Issue 3, (March 2018): 1039-1068.
- The Mark of a Criminal Record”, Pager, D., American Journal of Sociology 108 Number 5 (March 2003): 937-975.
- For more information, see “Criminal History in Employment” at https://www.dfeh.ca.gov.
- RAP sheets can be obtained from the California Department of Justice at https://oag.ca.gov/fingerprints/record-review.
- com or 877-322-8228.