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Please help with false allegation of domestic violence and employment....

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jprabang

Junior Member
What is the name of your state (only U.S. law)? California

I am in CA and have been arrested for false allegations of domestic violence ( 2 years ago ). No charges or conviction were made by accuser. I am going through a background check right now for employment at a hospital. Will this disqualify me for the position or will I have the chance to explain? I know in CA it is illegal to ask the applicant, but I'd rather discuss it than to get ruled out.
 


CdwJava

Senior Member
What is the name of your state (only U.S. law)? California

I am in CA and have been arrested for false allegations of domestic violence ( 2 years ago ). No charges or conviction were made by accuser.
Okay ... so, two years ago you were arrested for DV but not convicted, correct?

I am going through a background check right now for employment at a hospital. Will this disqualify me for the position or will I have the chance to explain? I know in CA it is illegal to ask the applicant, but I'd rather discuss it than to get ruled out.
If their background check includes a search of public records, they may find jail records that indicate the arrest. If they run a livescan for the position, it should not result in any disqualifying convictions, so the record should come back clear. If they do a record check with the local police department they might also find out about the arrest. If no charges were ever filed (you were never arraigned) then no court records should exist.

Whether you choose to reveal this info to your prospective employer is up to you.
 

umkemesic

Member
What is the name of your state (only U.S. law)? California

I am in CA and have been arrested for false allegations of domestic violence ( 2 years ago ). No charges or conviction were made by accuser. I am going through a background check right now for employment at a hospital. Will this disqualify me for the position or will I have the chance to explain? I know in CA it is illegal to ask the applicant, but I'd rather discuss it than to get ruled out.
California employers may not ask applicants about a prior arrest that did not lead to conviction. Period.

You should work on getting the arrest record expunged though.
 

davew128

Senior Member
California employers may not ask applicants about a prior arrest that did not lead to conviction. Period.

You should work on getting the arrest record expunged though.
IIRC the SOL for expungement is 2 years from the date of arrest. OP may be SOL on the SOL.
 

umkemesic

Member
IIRC the SOL for expungement is 2 years from the date of arrest. OP may be SOL on the SOL.
California Penal Code 851.8 PC allows for time restrictions to be waived upon a showing of good cause by the petitioner and in the absence of prejudice. I'm not in CA so if your expertise that they will not expunge it earlier, than I defer.

I can only confidently speak in Illinois were arrest can be immediately expunged if the charges were dismissed or even if SOL'd.

Regardless OP did say its been 2 years so he should be up soon.
 

davew128

Senior Member
California Penal Code 851.8 PC allows for time restrictions to be waived upon a showing of good cause by the petitioner and in the absence of prejudice. I'm not in CA so if your expertise that they will not expunge it earlier, than I defer.

I can only confidently speak in Illinois were arrest can be immediately expunged if the charges were dismissed or even if SOL'd.

Regardless OP did say its been 2 years so he should be up soon.
Not only are you wrong on the state, you're wrong on the law. It also requires a finding of factual innocence. Just because you didn't commit the crime doesnt' mean a reasonable person couldn't think you might have based on the arrest report.

(l) For arrests occurring on or after January 1, 1981, and for accusatory pleadings filed on or after January 1, 1981, petitions for relief under this section may be filed up to two years from the date of the arrest or filing of the accusatory pleading, whichever is later. Until January 1, 1983, petitioners can file for relief under this section
 

umkemesic

Member
Not only are you wrong on the state, you're wrong on the law. It also requires a finding of factual innocence. Just because you didn't commit the crime doesnt' mean a reasonable person couldn't think you might have based on the arrest report.

(l) For arrests occurring on or after January 1, 1981, and for accusatory pleadings filed on or after January 1, 1981, petitions for relief under this section may be filed up to two years from the date of the arrest or filing of the accusatory pleading, whichever is later. Until January 1, 1983, petitioners can file for relief under this section
There is no argument. Certainly factual innocence would be good cause shown and would not prejudice the State. Have a good day.
 

CdwJava

Senior Member
California employers may not ask applicants about a prior arrest that did not lead to conviction. Period.
Not entirely true ... MOST employers cannot ask about arrests. There are exceptions, though a hospital is not likely to be one of them.
 

umkemesic

Member
Not entirely true ... MOST employers cannot ask about arrests. There are exceptions, though a hospital is not likely to be one of them.
You are quite right, infact I wrote as much in a similar post today were a woman wanted to work in a school. I specifically said that even expunged convictions/guilty proceedings need to be disclosed in some civil service jobs.

I left it out here because I also do not belive this would likely not cover Hospitals. But I do know you have to be fingerprinted and have an FBI check in most Hospitals.
 

CdwJava

Senior Member
You are quite right, infact I wrote as much in a similar post today were a woman wanted to work in a school. I specifically said that even expunged convictions/guilty proceedings need to be disclosed in some civil service jobs.

I left it out here because I also do not belive this would likely not cover Hospitals. But I do know you have to be fingerprinted and have an FBI check in most Hospitals.
True. But, the clearance documents from DOJ should mention only disqualifying convictions, and not any arrests. LOCAL records, however (by courts, jails and local law enforcement) can be made available as public records and would contain that sort of information. While most employers cannot ask about arrests, that information can be found through a public records search which is most often done through a private background firm (online and fee-based for the most part). While one cannot theoretically be denied employment for an arrest or accusation, proving that such a record is the reason would be nearly impossible.
 

umkemesic

Member
True. But, the clearance documents from DOJ should mention only disqualifying convictions, and not any arrests. LOCAL records, however (by courts, jails and local law enforcement) can be made available as public records and would contain that sort of information. While most employers cannot ask about arrests, that information can be found through a public records search which is most often done through a private background firm (online and fee-based for the most part). While one cannot theoretically be denied employment for an arrest or accusation, proving that such a record is the reason would be nearly impossible.
Yes, usually the employee will never know, this is especially damaging if the record is not even there’s (someone with a similar name /dob) and they cannot dispute it. Smaller firms will do this a lot.

Larger firms, like the one that I work for, make a "conditional" offer - meaning you have the job depending on results of BG check. Anything that comes back you have the opportunity to dispute.

But truth be told, if I was running my own business in Illinois I certainly would just go to the courthouse and do the search myself, and certainly would not tell the applicant what I found whether I could use it or not.

I used t wonder how a Federal Background check could come so fast....then I discover screeners use PACER to check local cases :/
 

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