Criminal Defense

Can an Employer ask for My Criminal Record in California?

August 23, 2017 by Seppi Esfandi in Criminal Defense  Rights   Leave a Comment
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One‑In‑Four Americans

If you are one of the four Americans with a criminal record, you may run into obstacles in your job search. Surveys suggest that an alarming 92% of employers conducted criminal records checks on some job candidates, and 73% conducted criminal background checks on all candidates.

An estimated one in four Americans has a criminal record.

Economists are currently analyzing statistics on this growing number of Americans with felony convictions, looking for a correlation with decreasing participation in the job market, particularly with males. Fortunately, California job seekers with criminal records have some legal rights under law.

Criminal Background Check Laws in California

California Labor Code section 432.7 says that an employer cannot ask someone applying for a job for information about an arrest or detention that did not end in a conviction.

Concerning Arrests

California Labor Code (section 432.7) says:

  • An employer cannot ask someone applying for a job for information about an arrest or detention (from any source) that did not end in a conviction.
  • Employers may not ask applicants about information concerning a referral to and participation in a pretrial or posttrial diversion program.
  • They’re also prohibited from seeking or utilizing arrest records that didn’t result in conviction as a factor in determining conditions of employment such as hiring, promotion, or termination.

There are certain exceptions:

Those provisions don’t prevent employers from asking about arrests for which an employee or applicant is out on bail or on his own recognizance pending trial.

Peace officers or positions in the Department of Justice or other criminal justice agencies are not covered by Labor Code section 432.7. Also, employers at health facility may ask an applicant to disclose certain arrest information.

Employers may not ask an applicant to disclose information concerning or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law.

Concerning Convictions

California’s employers are prohibited from inquiring about dismissed, sealed or expunged records.

  • Employers may not ask about certain marijuana-related offenses if the convictions are more than two years old
  • Employers may not ask about convictions that have been judicially dismissed or ordered sealed, nor may employers seek information concerning a referral to, and participation in, any pretrial or posttrial diversion program.

There are certain exceptions:

The prospective employer is required by law to obtain that information. The job position requires the applicant to possess or use a firearm in the course of his or her employment.

A public utility or cable corporation may obtain records of convictions (or any arrests of individual released on bail or ‘own recognizance’ pending trial) of any current or prospective employee, contract employee, or subcontract employee only if, in the course of employment, the individual may seek entrance to private residences of adjacent grounds.

Savings associations and credit unions are allowed to take fingerprints =and send them to local, state, or federal law enforcement agencies to find out if an applicant has ever been convicted of a crime or is pending trial. The California Department of Justice must, and a local law enforcement agency may, give a summary of the criminal history information for the applicant. No requests can be submitted without the applicant’s written consent.

Additional Information

Additionally, Penal Code section 4852.22 shortens the waiting period for certain individuals seeking to apply for a Certificate of Rehabilitation. A Certificate of Rehabilitation doesn’t expunge an individual’s criminal record, but increases the likelihood of being granted a professional license, or obtaining gainful employment.

California does have a law called “ban-the-box”, prohibiting employers from asking applicants about criminal history on a job application, it only applies to government employers.

If an employer wants to perform criminal background checks from a third party, they have to comply with the federal Fair Credit Reporting Act (FCRA). The FCRA requires employers to get the applicant’s written consent beforehand and provide certain regulated notices if the employer decides to pass on an applicant based on the report.

Any employer that searches public records as part of a background check must follow certain steps, including supplying a copy of the record to the applicant within seven days.

Conclusion

Although these laws certainly help protect Californians that have been arrested, accused or convicted of crimes, it is only effective in some instances. There is much room for improvement for to help protect the rights of people that may have made a mistake in their lives but are looking for a second chance, or third chance but cannot overcome their checkered past. This is when an Expungement Attorney comes in handy.

If you or a loved one is being charged or convicted of any crime, we invite you to contact us immediately for a free consultation. Schedule an appointment to meet with us in person, or feel free to submit an evaluation online and we will get in contact with you ASAP. We can provide a free consultation in our office located in Century City, or by phone. Our experienced and assiduous attorneys will be sure to fight until the end to reduce, drop and expunge your charges completely, so that you may get on with your life and career.

Seppi Esfandi is an Expert Criminal Defense Attorney who has over 16 years of practice defending a variety of criminal cases.

Need a Los Angeles Expungement Attorney? CALL NOW: 310-274-6529

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References:

[1] https://calaborlaw.com/background-checks-what-are-my-rights/

[2] https://news.vice.com/story/criminal-records-are-keeping-millions-of-men-out-of-the-workforce-and-its-hurting-the-economy

[3] http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=LAB&sectionNum=432.7.

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Gerardo C.

Seppi was amazing, one of the nicest persons I've met. He was very professional and handled my case like so. He assured me from the beginning what he was going to be able to do for me and always was truthful. He always answered my phone calls and when he didn't he would respond to my voicemails promptly as well communicate via text. The fees were very reasonable. I never had to go to court and he fixed everything for me. I will definitely recommend him to my friends and family.

Anthony M.

I was facing 2 felony counts which included 2 strikes on my record. Each count was a sentence of 2-4 years in state prison. I was looking at 2 counts which could have sent me to jail for a maximum of 8 years. The DA was trying to offer me a lesser misdemeanor charge and Mr. Esfandi advised me to deny their offer and he assured me of a better outcome. MY CASE WAS DISMISSED! I told my girlfriend this is a blessing from God, and she said no it wasn't, you had a great lawyer! Thank you Seppi for doing an outstanding job. You saved my life!

Evan N.

This was the first time that I had to choose an attorney for anything. I am very thankful that I end up choosing Seppi Esfandi. The outcome of my brothers case was perfect and beyond fair with no jail time! I believe that without Seppi, my brother would had definitely been charged with a felony and served jail time. My family is extremely pleased with the professionalism that the Law Office of Seppi Esfandi had provided during the case. The paralegal, Jorge, was very friendly, professional, and I could immediately tell that they cared about our family situation. THANK YOU ONCE AGAIN!

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Meeting with Seppi Esfandi was the first step in the right direction after a big setback. He is professional, honest, generous, and has passion for what he does. He quickly and effectively answered every single question I had regarding my case and went above and beyond to help me. Esfandi did not stop fighting for me until he saw results in my case - I am so appreciative and grateful for all of his dedication and passion.

Carrie P.

Seppi was the first attorney I have ever hired and will be the only one I ever hire! My kids father was looking at 4 years prison and he got him down to 180 days and back to probation. So instead of prison time he is staying in county to only serve around 90 days. There were more then one cases and even though Seppi could've have charged more to help extra he made sure the other case was done right. He was very attentive and caring and didn't have very bad pricing considering. Thank you so much Seppi!

Miguel T.

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Cindy F.

Seppi and Shaun were by far the nicest people I have dealt with. I had a complicated situation with terrible prosecutors thinking just because I had a DUI, it automatically makes me a loser, a drunk, a terrible person - we all make mistakes. Seppi was able to get my case dismissed at one courthouse, and at the second was able to have me get the minimum sentence. I was scared from the get-go, but he was very supportive, especially after my mom passed. I would recommend Seppi and the Firm to my family/friends (heaven forbid they ever end up in my situation).

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Seppi was awesome. He will answer his phone at 10pm on a Saturday or any other time you need him. The decision to hire him was obvious. I've never been in legal trouble before and he made me feel very comfortable and assured throughout the entire situation. I actually relocated to northern California before the case ended and he was able to handle everything for me from a distance. I did not have to fly back to LA once. As far as LA lawyers go I found him priced at the going rate and money very well spent. I cannot not speak for more serious offenders, but for my situation, it was perfect.

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Seppi was great. He helped me get through one of the most stressful and frightening moments in my life. He answered nearly every question I had & if he was unable to answer at the moment, he made sure to follow-up with me as soon as he had the answer and/or information I needed. Since this was my first time ever in a legal situation, I was scared and confused. Seppi definitely helped me get through it. With his willingness to listen to me and with his expertise, I felt comforted & at ease knowing I had his assistance.

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Seppi is the best lawyer!! I was charged with a felony and he told me that it was a felony strike but that he would work hard for me. I knew to get him on my case because of the way he presented himself, i could tell he was a good lawyer. my case got dismissed after he went to court with me a few times. I am so thankful to Seppi for helping me.

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