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Higbee & Associates, a national law firm

How Criminal History Can Be Used for Employment Decisions

What information a potential employer is legally allowed to ask

What questions are potential employers legally allowed to ask?

With more than eighty 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.

"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 distinctions that needs to be drawn are between arrests, charges, and convictions. 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.

Questions that Employers are Legally Allowed to Ask

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 (see California Department of Fair Housing Fact Sheet Publication DFEH-161). These laws also apply to employers who are considering a current employee for promotion or termination.

"an employer cannot inquire about a conviction that has been expunged, sealed, or eradicated"

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.

How to Handle Unlawful Questions

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.

If you feel that you have been discriminated against for employment because of your criminal record then you may be eligible to receive monetary compensation from the employer if they have violated California labor laws. To learn more about that process please read our criminal record labor law violations page.

If you want to expunge your record, you can take our free expungement eligibility test to find out if you qualify for expungement.

Didn't find the answer you were looking for? A wealth of criminal record clearing information can be found on our free expungement information and education page.

By Jaime Longoria

Jaime Longoria is a third-year law student at the University of Utah's SJ Quinney College of Law. Mathew K. Higbee, Esq contributed to this article.

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