Criminal History Checks vs. Background Checks: Is there a difference?

When the California legislature passed AB 506, it included language that required a “background check” for certain people who work with youth.  It is essential that you know what meets the legal requirements for this required background check and the difference between a criminal history check and a comprehensive background check.

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It has long been considered a “best practice” to conduct some form of background check on new employees before extending an official job offer. The specifics of what constitutes a background check and what can or cannot legally be asked or explored in California are varied. For example, in 2018 California adopted the Fair Chance Act (“Ban-the-Box”) which generally prohibits employers (with certain specified exceptions) from asking about criminal convictions before making a job offer.

A pre-employment background check can be cursory or extensive.  It could be calling just the previous employer or all past employers for whom the applicant has worked for the past ten years.  It could involve asking for a credit report.  It could include asking for a DMV printout to see traffic citations or accidents, and of course, the long-time standard of contacting the three applicant-provided references. Depending on the position, the extent of that background investigation varies.

In 2022, when the California legislature passed AB 506 (the Youth Services Organizations Child Abuse and Neglect Prevention Bill), it included language that required administrators, employees, or regular volunteers of youth service organizations “to undergo a background check as specified.”

The text of AB 506 specified that the background check was to be conducted pursuant to Section 11105.3 of the California Penal Code which says, in part, (a) “Notwithstanding any other law, a human resource agency or an employer may request from the Department of Justice records of all convictions or any arrest pending adjudication involving the offenses specified in subdivision (a) of Section 15660 of the Welfare and Institutions Code of a person who applies for a license, employment, or volunteer position, in which they would have supervisory or disciplinary power over a minor or any person under their care.”

And (b) “A request for records under subdivision (a) shall include the applicant’s fingerprints…”

In California, the approved process for obtaining and processing these applicant fingerprints is “Live Scan.” Live Scan is inkless electronic fingerprinting. The fingerprints are electronically transmitted to the Department of Justice (DOJ) for completion of a criminal record check. The California Department of Justice website has a link to the Live Scan locations in each county in California.  You can find that website by clicking this link.

Despite the language of AB 506, Live Scan is simply a criminal history check rather than a background check. The term “background check” is much broader and can involve much more than just criminal history. Private investigators, online providers, and other third-party background check vendors may certainly be utilized above and beyond Live Scan to conduct background checks for your organization, but such third-party services alone are not AB 506-compliant. In California, to determine criminal history background in compliance with AB 506, the process must minimally involve fingerprinting via the Live Scan process to check California DOJ records.

While AB 506 requires only the Live Scan criminal history check (of California records), a broader and more comprehensive background check that includes a written application, face-to-face interview, verification of identity, reference checks with personal references, current and former employers and co-workers, current and former landlords, housemates, and neighbors, current and former ministry leaders, or others with knowledge of the applicant’s personal character and conduct, a national sexual offender registry search, and a national (FBI) criminal history check is a best practice and can only serve to better protect your ministry and the minors who have been entrusted to your care and protection.

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