Legal Question in Employment Law in California

I accepted a position with a financial institution, signed papers and received a start date. Day before the start date, the company received my background check. The position offer was recsinded. I was a contracting at the time for that company. Upon receipt of the background check I asked to leave the premises. I learned that the background check showed a dismissed mistemeaner that occurred in 1969 when I was 18 years old, over 40 years ago. There has been no reoccurance since. I've been unemployed since awaiting for Govenor's Pardon to clear my records. Is the background check a viable reason for a financial institute to decline employment? Check Point Security was the service provider.


Asked on 3/16/10, 3:19 pm

1 Answer from Attorneys

Terry A. Nelson Nelson & Lawless

Banks in particular are sensitive to conviction records and are free to terminate or refuse to hire upon finding out about a conviction. In general, unless an employee is civil service, in a union or has a written employment contract, they are an 'at will' employee that can be disciplined or fired any time for any reason, other than illegal discrimination or retaliation under the Discrimination, Civil Rights, or Whistle-blower, or similar statutes. The employee's goal should be to keep the employer happy.

I would speculate you will be waiting a long time for a 'governor's pardon', since this governor has only issued two during his tenure. They are rarely granted.

However, for your future employment: Many convictions can sometimes be 'expunged' by proper application and Motion to the court, but only if there was no prison time served or even sentenced, if it was not for certain sex and Domestic Violence crimes, if all terms of sentencing and probation [and at least one year of probation] are completed and finished, and if there are no new charges pending. If successful, the conviction would be retroactively withdrawn and the charges dismissed. That does not 'remove' the conviction, but merely changes the record to show 'conviction reversed and dismissed by expungement'. If expunged, you would be able to say 'no' to conviction on most private employment applications. However, the conviction is still a 'prior' for purposes of repeat offense, and must be disclosed on any application for government and professional licensing, bonding, security clearance, etc. The agency and employer then can decide whether you are barred from employment because of your conviction. The Labor Code bars employers [not others] from asking about arrests without conviction, or seeking that info from other sources, or using that info to deny employment. Private parties are not supposed to be able to access the records, but like all rules, there are ways around it. If you�re serious about doing so, and you think you qualify, feel free to contact me for the legal help you'll need.

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Answered on 3/21/10, 4:20 pm


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