Criminal Defense

Can an Employer ask for My Criminal Record in California?

August 23, 2017 by Mikel Rastegar 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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