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

by | March 7, 2024

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.

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. Live Scan, however, is simply a criminal history check rather than a background check. The term “background check” is much broader and can involve much more.  In some contexts, background checks might not include criminal history, but in California, to determine criminal history background, the process must involve fingerprinting via the Live Scan process.

While California law only requires the fingerprint criminal history check, a broader, more comprehensive background check that includes a written application, face-to-face interview, verification of identity, and reference checks with personal references, current and former employers and co-workers, current and former landlords and neighbors, and others with knowledge of the applicant’s personal character and conduct is the best practice and can only serve to better protect your ministry and the minors who you have been entrusted to protect.

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