How Criminal Data Can Be Used In Employment Decisions In California
With an estimated 80 percent of California employers performing background checks on possible employees, it is increasingly important for employers and employees to know how criminal history can be used in hiring decisions. Misusing information about a possible employee’s criminal history can consequence 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 typically the next step in the criminal course of action. An arrest can occur when law enforcement believes there is probable cause that a speculate has committed a crime. Upon that arrest, the state may decide to file charges with the court and prosecute the speculate. A conviction only occurs after a speculate 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 rule to convictions or where a diversion program was completed. There is also a rare 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 rule 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 consequence in civil and criminal liability. If an employer has unintentionally violated the above laws, an applicant may retrieve 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 deliberately 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 possible pitfalls for employers.