Photo by: John-Mark Kuznietsov

I’ve received a number of calls from colleagues who are California criminal defense attorneys whose clients have run into employment problems because of their criminal arrest records.

As an employer do you know what job application questions you can and can’t ask when it comes to arrests and criminal records?

California Labor Code section 432.7 makes it illegal for any employer to request job applications to disclose, or considering as a factor in determining any condition of employment, information concerning:

1. An arrest or detention that did not result in a conviction;
2. Referral to, or participation in, a pretrial or posttrial diversion program;
3. Conviction that has been expunged, sealed or dismissed;
4. Marijuana possession convictions two or more years old; or
5. Misdemeanor convictions for which probation was completed or otherwise discharged and the case has been dismissed.

Employers may ask an employee or applicant for information about arrests for which the employee or applicant is out on bail or on his own recognizance pending trial. There are additional exceptions for a health facility employer to ask applicants who will work with patients and/or have access to medication about arrests related to specific crimes.

Employers may ask an applicant and use to determine as a condition for employment information related to convictions, or entry into a pretrial diversion or similar program by the applicant in the following situations:

1. The prospective employer is required by law to obtain that information;
2. The job position requires the applicant to possess or use a firearm in the course of his or her employment;
3. An individual who has been convicted or a crime is prohibited by law from holding the position sought by the applicant, regardless of whether that crime has been judicially dismissed, expunged, statutorily eradicated or ordered sealed; or
4. The employer is prohibited by law from hiring an applicant who has been convicted of a crime.

The penalties for violations:

• Actual damages or $200, whichever is greater (treble actual damages, or $500 or intentional violations);
• Costs of suit;
• Reasonable attorney’s fees.
• An intentional violation is a misdemeanor punishable by a fine not to exceed five hundred dollars ($500).

Review your employment application for compliance with federal and California employment laws with a competent California employment attorney.

Learn about considering criminal convictions at the hiring phase.

If you have any questions e-mail or call me at (949) 529-0007.

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