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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 27888
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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Hello, I was denied employment based on a background check.

Customer Question

Hello,

I was denied employment based on a background check. Do I have any recourse to challenge.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  LawTalk replied 1 year ago.
Good morning,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today. In order to give you a clear and concise answer, I will need some additional information about the circumstances, please.

Can you be more specific as to what it was in your background check that cause you not to be hired?

And, why do you think that this finding should not have been considered by the employer in their hiring decision?

Doug

Doug
Customer: replied 1 year ago.

Hi Doug,


 


Did you get my response? There was no verification on my end.


 

Expert:  LawTalk replied 1 year ago.
Good afternoon Christian,

There was no response posted to the page, and I did not get notification of any response either. I do apologize, this is apparently ongoing glitch in the programing.

Would you lease re-post your response for me. Thanks for your understanding and patience.

Doug
Customer: replied 1 year ago.

Hi Doug,


 


In 2001 I was pleaded guilty to Elder Abuse & Dissuading a witness. I received probation. My charges were reduced in 2005 and in 2007 I had the record expunged.


 


That same year I went to work as a temporary employee through Wolberg/Michelson for the Bay Area Rapid Transit (BART). I went through a background check through BART prior to starting work.


 


I passed the background check and worked for them through March of 2009, when they offered me a position as a contractor.I worked as a contractor until March 2013.


 


At the beginning of 2013 they decided to make my position permanent, and put the position up for bidding. I went through the process and was selected as the best candidate.


 


I went through the entire process and was offered the position pending a background check. On May 3, I was contacted I did not pass and they would be rescinding their offer.


 


 


 


 

Expert:  LawTalk replied 1 year ago.
Good afternoon,

Thanks for the additional information Christian.

I'm quite sorry that you find yourself in this situation. If you were applying for a position with a non-governmental entity, this conviction likley would not have been found.

There is one thing that most folks don't understand about CA expungements. If your petition is granted under Penal Code 1203.4, your case is not actually sealed. And, for many circumstances the charges and the plea and conviction will be able to be located. Any time you are apply for a government job or a job which requires a government-issued license, certificate, or permit, or a job which involves a security clearance, the conviction will be discovered because.

Now, I can not say whether they were aware of the charges and conviction when you previously applied for the positions that you held---and I sense that you are presuming that because you go the job, that they were not found---but that is not necessarily the case. It may be that they intentionally overlooked it in the past---I just don't know for sure.

The botXXXXX XXXXXne though is that it is not unlawful for an employer in the state of CA to discriminate against hiring employer with criminal records if "the crime or act is substantially related to the qualifications, functions and duties of the business or profession for which the application is made."

In order to win a case for wrongful discrimination, you would have to prove that the conviction which was located doesn't substantially relate to the qualifications, functions and duties of the job you were tentatively given.

However, if you wish to approach the situation from that perspective, you might consider filing a formal complaint with the EEOC (Equal Employment Opportunity Commission). If the employer has 15 or more employees, they are prohibited from discriminating against you. To file a complaint with the EEOC, contact the nearest Equal Employment Opportunity Commission field office. To be automatically connected with the nearest office, call(NNN) NNN-NNNN EEOC website: www.eeoc.gov

 

Federal law specifically prohibits discrimination, based upon the Ethnicity, Color, Religion, National Origin, Age, Sex or Disability of an individual, with regard to hiring, promotion and firing.

 

After you file the complaint, your employer will be prohibited from any retaliatory action against you. The EEOC will investigate your claim, and 180 days after the filing of the complaint you may ask for a "right to sue letter". The EEOC will issue you the letter which gives you the right to institute a private civil action against your employer and seek monetary damages.

 

Here is an interesting article on the relationship between some background checks and discrimination:

 

http://www.diversityinc.com/legal-issues/are-criminal-background-checks-discriminatory/

 

 

I wish you the best in 2013.

I understand that you may be disappointed by the Answer you received, as it was not particularly favorable to your situation. Had I been able to provide an Answer which might have given you a successful legal outcome, it would have been my pleasure to do so.

You may reply back to me using the Reply to Expert link if you have additional questions.

Kindly take a moment to rate my service to you based on the understanding of the law I provided. Please understand that I have no control over the how the law impacts your particular situation.

Thank you,

Doug

LawTalk, Attorney
Satisfied Customers: 27888
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
LawTalk and 2 other California Employment Law Specialists are ready to help you
Expert:  LawTalk replied 1 year ago.
Thank you for your positive rating of my service, Christian. It has been my pleasure to assist you and I hope than you will ask for me on JustAnswer should a future need ever arise.

Please feel free to bookmark the following link so you can request me to answer any future legal questions you may have:
http://www.justanswer.com/law/expert-lawtalk/

Thanks again.

Doug

When you receive your Customer Satisfaction Survey from JustAnswer, please do rate me highly (9-10) there as well. It benefits my ability to assist you and other customers, and would be tremendously appreciated.
Customer: replied 1 year ago.

Hi Doug,


 


It sounds like I have very little, if any, recourse in this situation, so I have a couple of extra questions in order to help me move forward.


 



  1. Was the expungement I paid for worthless and will not help me when looking for employment?

  2. Is there anything else I can do so that I have a better chance finding employment next time?


 


Thank you again for your promt response.


 


Regards,


Christian

Expert:  LawTalk replied 1 year ago.
Hi Christian,

It is the extensive background checks done by government entities and employers who require security clearances, or for jobs that you are working with children in that will catch the conviction.

Private employers likely will not find the conviction as the background checks they do are less exhaustive---and generally they don't have access to NICS checks through the FBI. An expungement does not wipe out records held by the FBI.

Your expungement was not worthless, and for non-government jobs you do not have to admit to the prior conviction.


Many employers in CA are also limited to seeking convictions that are no further in the past than 7 years---but again, there are a number of employer to which this requirement does not apply, including government positions, law enforcement, education, childcare, elderly care, phone companies, finance, alarm companies, pharmacists and private Investigators.

I wish you well.

Doug
Customer: replied 1 year ago.

Hi Doug,


 


Can you elaborate on my second question a little more. Would it benefit to have my record sealed?


 


Christian

Expert:  LawTalk replied 1 year ago.
Hi Christian,

Your matter may not be sealed. CA seals only Juvenile records and Arrest records or charges which did not result in a conviction, and you must also show that you were factually innocent of the crime.

Doug

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