can an employer ask criminal record

Nearly one in four Americans have some type of criminal record. Whether it is a misdemeanor arrest for a youthful indiscretion or a more serious felony offense, any type of criminal record can hurt job seekers in their search for employment.

California law provides multiple types of protections for job seekers with a criminal past. These rules assume that past indiscretions should not keep a person from earning a living, and help reduce discrimination against people who may have made some mistakes in their lives.

While employers are allowed to conduct background checks on applicants and ask questions about certain kinds of arrests or convictions, the amount of information that employers can seek out and the types of information which can be used against an applicant is limited by California law.

For instance, applicants cannot be asked about arrests which never resulted in a conviction, arrests which resulted in an acquittal, or arrests that were channeled through pre- or post-trial diversion programs. If the employer finds this type of information through a criminal background check, the employer is prohibited from seeking out additional information about the arrest or using that arrest against the applicant.

Business InterviewAdditionally, employers cannot request information about convictions which were sealed, expunged, or nullified by statute. For example, some older marijuana convictions are off-limits because the laws regarding the drug have changed dramatically. However, employers are allowed to require applicants to disclose information about arrests which have not yet been resolved, like those that are still awaiting trial.

If an employer wants to conduct a background check, then the employer will need to get that applicant’s permission. Additionally, the employer will need to give the applicant a copy of the report and inform the applicant if the information in the background check will disqualify him or her from employment. California employers who run their own background checks must inform their employees every time that they conduct a check, even after employment.

It can be difficult to tell if a prospective employer discriminated against you in the hiring process because of a past arrest, or if the employer simply chose another candidate. If something feels off in your interview, take notes about the questions your interviewer asked as well as any comments or behaviors that felt wrong. If an employer says something to make you think that your job application will not be considered because of your criminal record or because of your age, race, gender, or some other protected characteristic, then you may be able to file a claim against that employer. Contact us today to speak with a discrimination attorney in San Francisco today.

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Labor Law Office, APC

2740 Fulton Avenue, Suite 220
Sacramento, CA 95821

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