Criminal History Inquiries

Being arrested doesn’t make you guilty. Having an employer consider arrests when making employment decisions,can be prejudicial.

Generally, an employer cannot use arrests that did not result in a conviction as a “determining factor” in a decision not to hire someone, under California Labor Code Section 432.7. Certain statutory exceptions apply.  Employers who run certain health care facilities, or places where the employee would have access to medications, or public entities where the applicant would have access to private homes.  But, it’s generally legal for an employer to ask about pending criminal charges or arrests, when the employee or applicant is out on bail, or has been released on their own recognizance.  Labor Code 432.8 also prohibits employers from asking for convictions for minor marijuana offenses that are more than two years old.  But, other than that, employers in California can ask about convictions, as long as there is a legitimate business interest present.

A criminal conviction will not bar an applicant from taking most jobs.  However, most employers are free to use convictions to determine eligibility for employment. Under certain circumstances, where an employer uses convictions to determine qualifications for employment, the employer may be engaging in discrimination if the policy would have a negative impact on minority groups. In other words, an employer can’t use criminal convictions as a litmus test if it eliminates all candidates of a certain race, for example.  It has been widely reported that African Americans are more likely to be arrested for minor drug charges than Caucasians.  In some circumstances, employers may be negligent in hiring an employee with criminal convictions, if others could be endangered in the course of the employment. An obvious example could be employees who care for the elderly or other vulnerable populations, and have convictions for theft, drug offenses or physical abuse. If such an employer did not ask about an employee’s record, the employer could be held liable for offenses committed by the employee in the course of employment.

As of January 1, 2014, employers are not allowed to ask a job applicant to reveal information about a conviction that was dismissed or sealed by the court.  This information cannot be required to get or keep a job.  Employers are also not allowed to use such records with regard to determining who gets to participate in an internship, training program, or termination. Participation in a pre- or post-trial diversion program also cannot be a factor.

For more information or for a free case evaluation call 1-877-219-8481