It depends on where the case stands. A pending charge can appear on a state background check, and employers may ask about it while you are released awaiting trial. An arrest that ended without a conviction generally cannot be asked about or used by California employers. A conviction usually shows unless it has been dismissed or relieved under record relief laws, which limit what most checks can report.
What a standard background check actually shows
Fingerprint background checks for jobs and licenses in California run through the Department of Justice's Live Scan system, which compares your fingerprints against the state's criminal history repository, the source of the record often called a "RAP sheet." Only employers, agencies, and licensing boards that a statute authorizes can request this check, and the response each one receives is limited to what the law lets that requester see (see the California Department of Justice's fingerprint background check overview). Under the general rule for employment and licensing requests, the response lists convictions, any arrest for which you are currently awaiting trial, and sex offender registration status, but leaves out convictions that have been dismissed or relieved under sections such as 1203.4 and 1203.425; schools and some agencies with special legal authority receive more (Penal Code section 11105). Some employers instead use a private background screening company. Under California's investigative consumer reporting law, those companies generally may not report an arrest, charge, or conviction more than seven years old, counted from its disposition, release, or parole, and must stop reporting an arrest once it is learned that no conviction resulted, though a pending case can be reported (Civil Code section 1786.18). You can request your own complete record through the DOJ's Request Your Own Record process, which is the most reliable way to see what is on file.
Arrests that never led to a conviction
An arrest that did not lead to a conviction is treated differently from a conviction. Labor Code section 432.7 bars California employers, public and private, from asking about or using an arrest or detention that did not result in a conviction, or a referral to or participation in a diversion program. The exceptions are limited: an employer may ask about an arrest for which you are out on bail or on your own recognizance awaiting trial, and health facilities may ask about certain sex offense and drug arrests for jobs with patient or drug access. Separately, if the statute of limitations ran without charges being filed, the charges were dismissed and cannot be refiled, or you were acquitted, you can petition to have the arrest itself sealed under Penal Code section 851.91, and many such arrests also qualify for automatic arrest record relief that the Department of Justice applies on its own (Penal Code section 851.93). Once sealed, the arrest "is deemed not to have occurred," and sealed arrest records may be released only to you or a criminal justice agency (Penal Code section 851.92), though you may still have to disclose the arrest in response to a direct question on an application for public office, a peace officer job, a state or local license, or a State Lottery contract.
Convictions: automatic relief versus a dismissal petition
A conviction is different from an arrest, and California now relieves many convictions in two separate ways. Penal Code section 1203.425 creates automatic relief: subject to state budget funding, the Department of Justice reviews its records every month and, without any petition from you, grants relief, including dismissal, for a conviction that qualifies. Generally that means a case where probation was completed without revocation; a misdemeanor or infraction without probation, once the sentence is complete and at least a year has passed since judgment; or a felony other than a serious, violent, or registrable one, four years after you finished all supervision with no new felony conviction. It applies only to people who are not required to register as sex offenders, are not under supervision, and have no pending charges. Convictions that do not qualify can generally be addressed by petition, most often under Penal Code section 1203.4 when probation was granted, where a court can let you withdraw your plea or set aside the verdict and dismiss the case; see the firm's page on expungement.
Either way, the law says you are "released from all penalties and disabilities" resulting from the offense, and since 2023 the court may not disclose a relieved or dismissed conviction to anyone other than you or a criminal justice agency, with limited exceptions (section 1203.425(a)(3)). Some limits remain under both statutes: relief does not restore a firearm right the conviction took away, does not undo an unexpired criminal protective order, and does not excuse disclosing the conviction in response to a direct question on certain applications, including for public office, with each statute adding its own list, such as a peace officer application after automatic relief or a state or local license after a section 1203.4 dismissal.
When an employer can even ask
Even before any of that relief applies, many employers cannot ask about your conviction history at all until late in the hiring process. California's Fair Chance Act, Government Code section 12952, bars an employer with five or more employees from asking about or considering conviction history until after making a conditional job offer, with exceptions that include positions where a law requires a criminal background check and positions with a criminal justice agency. Even after the offer, the employer cannot consider an arrest that did not lead to a conviction (apart from the exceptions above), participation in a diversion program, or a conviction that has been sealed, dismissed, or expunged. If the employer then wants to withdraw that offer because of something in your history, it has to perform an individualized assessment of the conviction, notify you in writing of its preliminary decision, and give you at least five business days to respond before making a final decision.
What changes the answer
- The type of check. A government licensing board, a law enforcement employer, or a position working with children or elders can have separate statutory access to information a typical private employer cannot see.
- Sex offender registration. Registration status is included in state background check responses (Penal Code section 11105), registrants are not eligible for automatic relief under section 1203.425, and a section 1203.4 dismissal does not end a registration requirement (Penal Code section 290.007).
- Immigration-related screening. A federal immigration matter looks at your record through its own rules, separate from a California DOJ background check; see the firm's answer on how California record relief affects immigration consequences for how the two systems interact.
- Whether the record itself is accurate. If a background check comes back with the wrong charge, the wrong disposition, or a case that is not actually yours, see the firm's answer on correcting an inaccurate California DOJ criminal record.
If you are applying for a job, a license, or housing and want to know what your own record currently shows, or whether you qualify for sealing or dismissal, the Law Offices of David S. Chesley can go over your options; reach the firm at (800) 755-5174.