How Criminal Data Can be Used in Employment Decisions in California

With an estimated 80 percent of California employers performing background checks on potential employees, it is increasingly important for employers and employees to know how criminal history can be used in hiring decisions. Misusing information about a potential employee&’s criminal history can result in the employer getting a criminal history of his or her own.

The first distinction that needs to be drawn is that between arrests, charges, and convictions. After an investigation of a possible crime, an arrest is normally the next step in the criminal process. An arrest can occur when law enforcement believes there is probable cause that a suspect has committed a crime. Upon that arrest, the state may decide to file charges with the court and prosecute the suspect. A conviction only occurs after a suspect has plead guilty or no contest (nolo contendre), or is found guilty by the court.

An employer is generally permitted to ask about an applicant’s criminal convictions or any pending charges. However, in most circumstances, California law (Labor Code section 432.7) prevents employers from asking an applicant to disclose arrests that did not lead to convictions or where a diversion program was completed. There is also a unique exemption that allows an applicant not to disclose marijuana possession convictions that are two or more years old. Furthermore, an employer cannot inquire about a conviction that has been expunged, sealed, or eradicated. These laws also apply to employers who are considering a current employee for promotion or termination.

In some very limited circumstances, California Labor Code allows an exception for an employer to ask about arrests that did not lead to convictions. For example, an employer may ask an applicant to disclose any drug-related arrests if the applicant would have access to medication as a part of his or her job duties. Another exception occurs when a medical facility asks the applicant to disclose sex-related offenses where the position allows access to patients. An employer may also ask you to disclose an arrest that you are currently out on bail for.

If you are applying for a position as a peace officer or are currently a peace officer, you may be asked to disclose an arrest. However, you may not be discharged or denied employment based on that arrest without further investigation.

A violation of the above laws, excluding those covering peace officer employers, may result in civil and criminal liability. If an employer has unintentionally violated the above laws, an applicant may recover personal damages, costs, and reasonable attorney fees. An intentional violation of the above laws entitles the applicant to triple the amount of personal damages, costs, and attorney fees. An employer who intentionally misuses criminal data may end up with a criminal record of their own as abuses can be prosecuted as a misdemeanor.

California’s restrictions on how criminal records can be used are just the start of the privacy protections for those with a criminal history. See the second part of this series, How Criminal History Can Be Reported and Researched For Employment Purposes, to learn about the other protections for job seekers and potential pitfalls for employers.

Mathew Higbee is licensed to practice law in California and Utah. His law firm specializes in record sealing and expungement. Jaime Longoria contributed to this article.


One Response

  1. Can potential California employers ask about, consider deferred ajudication?

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