A client asked the following question:
How long does a criminal conviction in a California court stay on my record when an employer in Arizona hires a background check company in Arizona to provide a report?
Short answer is forever.
Answering this involves analyzing federal law as well as California and Arizona law.
All background checks are governed by the Fair Credit Reporting Act (15 USC § 1681c). The Fair Credit Reporting Act (FCRA) regulates the collection, dissemination, and use of consumer information, including consumer credit information and is enforced by the Fair Trade Commission and private law suits.
The FCRA section 605(a)(5) prohibits the reporting of any adverse information, other than conviction, beyond 7 years prior to date of the report. However, the FCRA does not place any limits on how long a conviction can remain on your background check. There is some confusion regarding this and that is probably caused by the fact that prior to 1998 convictions were only allowed to be reported for seven years. The restriction was removed with the “Consumer Reporting Clarification Act of 1998” (Senate Bill 2561, Pub. L. No. 105-347)
California regulates background checks through The Investigative Consumer
Reporting Agencies Act (California Civil Code Section 1786). That law prohibits the reporting of felony convictions beyond 7 years prior to the date of the report.
1786.18(a)(7) Records of arrest, indictment, information, misdemeanor complaint, or conviction of a crime that, from the date of disposition, release, or parole, antedate the report by more than seven years. These items of information shall no longer be reported if at any time it is learned that, in the case of a conviction, a full pardon has been granted or, in the case of an arrest, indictment, information, or misdemeanor complaint, a conviction did not result; except that records of arrest, indictment, information, or misdemeanor complaints may be reported pending pronouncement of judgment on the particular subject matter of those records.
Since there is nothing in California that prevents an employer in Arizona from using a background check in Arizona Arizona Revised Statute provides that a consumer reporting agency (background check company) may furnish a consumer report (background check) if the consumer (employer) intends to use the information for employment purposes. Additionally, there are no restrictions in Arizona law as to use of convictions on background checks.
However, there are some protections for those with criminal records when it comes to employment decisions.
Arizona Revised Statue Section 13-904 states that “a person shall not be disqualified from employment by this state or any of its agencies or political subdivisions, nor shall a person whose civil rights have been restored be disqualified to engage in any occupation for which a license, permit or certificate is required to be issued by this state solely because of a prior conviction for a felony or misdemeanor within or without this state. A person may be denied employment by this state or any of its agencies or political subdivisions or a person who has had his civil rights restored may be denied a license, permit or certificate to engage in an occupation by reason of the prior conviction of a felony or misdemeanor if the offense has a reasonable relationship to the functions of the employment or occupation for which the license, permit or certificate is sought.”
In conclusion, since federal law and Arizona law do not limit the reporting of convictions, and California law does not apply to background checks by out of state companies for employers and jobs that are out of state, there is no limit to how long a conviction can be reported by an Arizona background check company for purposes of an employer in Arizona.
Written by Jennifer Strange
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In the state of AZ, will the fact that my conviction of a misdemeanor in 1999 show that it was set aside in 2008? This would be a potential employer doing the background check
I am not sure I understand what you are asking. But here are a few things to keep in mind. Background checks for employment purposes are regulated by the Fair Credit Reporting Act and are obligated to provide accurate information. So, if your case was set-aside in 2008, the background check must show that it was set-aside. Also, many states limit the number of years back a background check can provide negative history. In California, for instance, background checks cannot show negative history that predates the background check by more than 7 years.
Thank you. How long can the state of AZ show negative history that predates the background check? I ask this because sometime in 2008, after I received a letter from the court saying this misdemeanor had been set aside, I looked at a website that brought up the misdemeanor and at first I could not see the fact that it had been set aside. I had to scroll down the page to find the fact it had been set aside. It almost seemed like it was a bit hidden. This web site does not exist anymore. I can’t find the records going through the courts web site, and I refuse to pay these commercial web sites to see my own record. This was a minor incident, but I want to know what it looks like to a potential employer.